Bhattarai (Migration)

[2023] AATA 303

Bhattarai (Migration) [2023] AATA 303 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sujan Bhattarai
Mrs Sabitra Bogati Bhattarai

REPRESENTATIVE:  Mr Robert Bock (MARN: 9250359)

CASE NUMBER:  1929702

HOME AFFAIRS REFERENCE(S):          BCC2019/2222593

MEMBER:Katie Malyon

DATE:9 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. 

Statement made on 09 February 2023 at 4:06 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – competent English – English language test in the 3 years prior to visa application – COVID19 pandemic closure of previous employer – lengthy professional experience – successful test result soon after visa application – referral for Ministerial intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 187.232; r 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Nepalese nationals Mr Sujan Bhattarai and Sabitra Bogati Bhattarai applied for the visas on 23 April 2019.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. Criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria' as well as the criteria of one of 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In this case, the first named applicant, Mr Bhattarai, is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook ANZSCO 351411.  Mr Bhattarai was successfully nominated by BKA Pandoo Pty Ltd T/A La Baguette Magique Patisserie Cafe (the Company) which was based in the ACT at Braddon. The Company’s nomination was approved on 4 November 2019.

5. The delegate refused to grant the visas on the basis that Mr Bhattarai did not meet cl 187.232 of Schedule 2 to the Regulations because he did not have competent English at the time of application as required by cl 187.232(a) of Schedule 2 to the Regulations. In his application, Mr Bhattarai responded ‘No’ to the question about whether he had undertaken an English language test in the 3 years prior to lodgement of the application. The Department sent Mr Bhattarai a natural justice letter informing him of this adverse information. In response, Mr Bhattarai provided the Department with a Pearson PTE Academic exam results: however, the test had been undertaken on 26 May 2019, that is, one month after lodgement of the visa application. As this test result post-dated the date of lodgement, the delegate found that this Pearson PTE Academic result did not satisfy cl 187.232(a) of Schedule 2 to the Regulations. A copy of the delegate’s decision was provided to the Tribunal.

   Hearing - 26 October 2022

6. Mr Bhattarai appeared before the Tribunal on 26 October 2022 to give evidence and present arguments on behalf of the applicants.  The hearing was conducted by way of MS Teams videoconference.  It was conducted with the assistance of an interpreter in the Nepali and English languages.  With very limited exceptions, Mr Bhattarai responded to all of the Tribunal’s questions in English.  The applicants were represented in relation to the review by their newly appointed registered migration agent Robert Bock.  The representative attended the hearing.

7. Prior to the hearing, the representative provided a brief focused submission together with supporting documentation including Mr Bhattarai’s most recent Pearson PTE Academic English language test results dated 11 October 2022 (Listening 53, Reading 51, Speaking 70, Writing 46 and Overall Score 53) together with a favourable skills Assessment from VetAssess dated 10 June 2022 for Mr Bhattarai’s occupation of Cook (Commercial Cookery) ANZSCO 351411.  The representative states that Mr Bhattarai received some misleading advice about when he should have taken his English language test and he did take one before lodgement of the application, but he missed the required levels.  Subsequently, after lodgement of the visa application, he did another test and was successful.  The representative also notes that the Company has been adversely affected by COVID such that the business has now closed.  Fortunately, Mr Bhattarai found work as a Cook with J Functions and Catering Services Pty Ltd T/A Chefs2U (ACT) (J Functions).  In the circumstances, the representative opines that the impact of COVID has been disastrous on Mr Bhattarai and it may be opportune to refer this matter to the Minister. 

8. During the hearing, Mr Bhattarai confirmed that the Company was forced to close as a result of the impact of COVID on the business.  However, he successfully managed to secure employment as a Cook in Canberra with J Functions which contracts its services to multiple venues.  

9. Following the hearing, the representative provided a range of documentation including information from J Functions in support of his request that the Tribunal refer this matter to the Minister pursuant to s 351 of the Act. Documentation provided is discussed below.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. It has also considered whether this is an appropriate case to refer to the Minister pursuant to s 351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue

11. The issue in the present case is whether the primary applicant Mr Bhattarai satisfies the English language proficiency requirement in cl 187.232 of schedule 2 to the Regulations.

    English language proficiency

12. In relation to an applicant seeking to satisfy the primary criteria for a Direct Entry Subclass 187 visa, cl 187.232 of Schedule 2 to the Regulations requires that:

    At the time of application, the applicant:

    (a)had competent English; or,

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    The Tribunal has considered these provisions as they apply in this case.

    Did the primary applicant have ‘competent English’ at the time of application: cl 187.232(a)?

13. The term ‘competent English’ is defined in reg 1.15C of the Regulations. A person has ‘competent English’ if either s/he:

    1)undertook a specified language test in the 3 years immediately before the day the visa application was made and achieved a specified score (emphasis added); or,

    2)hold a specified passport.

14. The following test scores are specified in IMMI 15/005 for the purposes of reg 1.15C(1) of the Regulations:

    a)an IELTS test score of at least 6 in each of the 4 test components of ‘speaking, reading, writing and listening’ (the 4 Test Components); or

    b)an OET test score of at least B in each of the 4 Test Components; or

    c)a TOEFL iBT test score with at least the following scores in the 4 Test Components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

    d)a PTE Academic test score of at least 50 in each of the 4 Test Components.

15. The Department’s file confirms that, in his Subclass 187 visa application, Mr Bhattarai responded in the negative to the question as to whether he had undertaken an English-language test in the 36 months prior to lodgement of the application on 23 April 2019.  Mr Bhattarai confirmed this at the hearing.  He did, however, indicate in his application that he has functional English.  As noted above, in response to the delegate’s request for evidence of his English language ability as at the time of application, Mr Bhattarai provided a Pearson PTE Academic test results undertaken on 26 May 2019.  The 4 Test Component results confirm that he scored Listening 52, Reading 54, Speaking 65, Writing 53 with an Overall Score of 53.  As such, had the test been undertaken prior to lodgement of the visa application, Mr Bhattarai would have demonstrated that he had ‘competent English’.  However, as the test was undertaken one month after lodgement of the Subclass 187 visa application, the delegate refused the visa application.

16. During the hearing, Mr Bhattarai explained that he prepared and lodged the visa application himself with the benefit of advice from family and a migration agent who did not share with him the need to provide current evidence of his English language ability as at the time of lodgement of the application.  Mr Bhattarai acknowledged during the hearing that he did not meet the time of application criterion in relation to demonstrating that he had ‘competent English’ as confirmed by an English-language test in the 3 years prior to lodgement of the visa application.    

17. The relevant passports specified in IMMI 15/005 for the purposes of reg 1.15C(2) of the Regulations are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland to a citizen of that country. Mr Bhattarai only holds a passport from Nepal. He confirmed this at the hearing. A Nepalese passport is not a passport from one of the 5 countries specified in IMMI 15/005.

18. The Tribunal noted the time of application criterion in cl 187.232(a) of Schedule 2 to the Regulations is clear and it has no discretion to waive the requirements. As such, it must affirm the delegate’s decision. Mr Bhattarai confirmed he understood the Tribunal’s position in this regard.

19. In summary, evidence before the Tribunal confirms Mr Bhattarai did not, in the 3 years immediately preceding lodgement of the applicants’ Subclass 187 visa application on 23 April 2019, undertake an English language test specified in IMMI 15/005 which demonstrates he has ‘competent English’ and nor does he hold a specified passport. Accordingly, the Tribunal finds that Mr Bhattarai does not meet the requirements of having ‘competent English’ as defined in reg 1.15C of the Regulations as at the time of application.

20. Therefore, cl 187.232(a) of Schedule 2 to the Regulations is not met.

    Is the primary applicant within a class of specified persons: cl 187.232(b)?

21. As the Company’s nomination and Mr Bhattarai’s Subclass 187 visa application were lodged after 18 March 2018, the relevant legislative instrument for the purposes of cl 187.232(b) of Schedule 2 to the Regulations is IMMI 18/045.

22. There is no class of specified persons for the purposes of the Direct Entry stream in

    
    

    cl 187.232(b) of Schedule 2 to the Regulations in IMMI 18/045. Rather, the only classes of persons specified for exemptions to the English language requirements relate to applicants who have applied for a Subclass 186 visa or a Subclass 187 visa in the Temporary Residence Transition stream.

23. Therefore, cl 187.232(b) of Schedule 2 to the Regulations is not applicable in the circumstances of this case.

    Conclusion

24. As the Tribunal has found that Mr Bhattarai does not meet cl 187.232(a) and cl 187.232(b) is not applicable in this case, it therefore finds that cl 187.232 of Schedule 2 to the Regulations is not met.

25. Mr Bhattarai has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream.  No claims have been made in respect of the other visa stream.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

26. The application of the second named applicant, Mrs Sabitra Bogati Bhattarai, is based on her being a member of the family unit of a person who meets the primary criteria.  As Mr Bhattarai does not meet the primary criteria, she cannot meet the criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse Mrs Bhattarai’s Subclass 187 visa application must also be affirmed.

    Is this an appropriate case to refer to the Minister?

27. Having found that the delegate’s decision must be affirmed because Mr Bhattarai does not meet cl 187.232 of Schedule 2 of the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister.

28. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so consistent with s 351 of the Act.

29. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of the power under s 351 of the Act, nor is there any statutory power vested in the Tribunal to make a binding recommendation in this regard. The statutory power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether s/he is requested to do so by the applicant, or any other person, or in any other circumstances.

30. The Minister has issued Guidelines explaining the circumstances in which s/he may wish to consider exercising the public interest powers under s 351 of the Act.[1]  The Guidelines state that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  The circumstances which may be unique or exceptional in this case include, relevantly:

    ·     exceptional economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia;

    ·     circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    [1] Ministerial intervention (homeaffairs.gov.au)

31. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Minister’s Guidelines is that the case should involve unique or exceptional circumstances.  The Minister has also indicated where it would be inappropriate to bring a matter to his/her attention, none of which apply in this case.

32. The factors referred to above which cumulatively engage the Tribunal’s consideration of referral of this matter to the Minister are set out below.

33. First, exceptional economic … or other benefit would result from the review applicant being permitted to remain in Australia.

34. The Tribunal notes that Mr Bhattarai arrived in Australia on 2 November 2017 as the holder of a Subclass 457 visa to work in the position of Cook with Goldilla International Pty Ltd T/A Le Bukhara.  His Subclass 457 visa expired 23 April 2019.  Prior to working in Australia, Mr Bhattarai had worked for more than 8 years as a full-time Cook in Nepal, initially at the Eden Jungle Resort, and then the Hotel Peace N Park. 

35. Just prior to the hearing, the newly appointed representative provided the Tribunal with a submission together with evidence of Mr Bhattarai’s skills, qualifications and employment in Australia as a Cook including:

    (1)the skill assessment from VetAssess dated 10 June 2021 confirming Mr Bhattarai has been favourably assessed for the occupation of Cook (Commercial Cookery) ANZSCO 351411.

    (2)a signed letter from Jacob Thomas, Head Chef at J Functions dated 24 March 2022 confirming Mr Bhattarai has been working as a Cook at Lanyon Vikings’ Sports Club in Conder, ACT under J Functions’ direction since December 2020.  The letter sets out his full duties as a Cook.  Mr Thomas notes that Mr Bhattarai is an efficient and safe worker who meets high standards: he is reliable, capable and honest with a pleasant personality and good communication skills;

    (3)website extract information for Lanyon Bistro where Mr Bhattarai works under J Functions’ direction;

    (4)a signed Letter of Completion from Adam Fathel, CEO with College of English Education and Training Australia RTO 32073 CRICOS 03605B (CEETA) dated 9 July 2019 confirming Mr Bhattarai undertook a Certificate IV in Commercial Cookery with CEETA from 10 June 2018 until 28 June 2019.  The Tribunal notes Departmental Movement Records confirm Mr Bhattarai undertook this course while he was working as the holder of a Subclass 457 visa and then, subsequently, a Bridging A visa following lodgement of his Subclass 187 visa application nominated by the Company on 23 April 2019;

    (5)a copy of Mr Bhattarai’s Certificate IV in Commercial Cookery from CEETA issued 9 July 2019; and,

    (6)a copy of each of Mr Bhattarai’s Certificate III and Certificate IV in Commercial Cookery issued by All Australian Training Pty Ltd (former RTO 22114) dated 11 November 2016 and 21 November 2016 respectively. 

    Although All Australian Training Pty Ltd is no longer operating as an approved Registered Training Organisation (RTO), publicly available records from the Government’s training.gov.au website confirm that it delivered its Certificate III SIT30813 in Commercial Cookery and its Certificate IV SIT40413 in Commercial Cookery in Nepal, as well as multiple other countries overseas including Bangladesh, China, India, Korea, Indonesia, Mauritius, Malaysia, the Philippines and Vietnam .[2]

    [2] training.gov.au - 22114 - All Australian Training Pty Ltd

36. Following the hearing, the representative provided the Tribunal on 10 November 2022 with a number of additional documents including:

    (1)Organisation Chart for J Functions;

    (2)J Functions’ Business Activity Statement for the period 1 April - 30 June 2022;

    (3)Payroll Activity Statement for Mr Bhattarai from 1 January 2021 – 2 November 2022;

    (4)invoice addressed to J Functions from Tuggeranong Valley Rugby Union & Sports Club’s Lanyon Bistro dated 16 November 2022 for ‘licence fees for October 2022’;

    (5)photos of Mr Bhattarai at Red Rock Bistro operated at Tuggeranong Valley Rugby Union & Sports Club;

    (6)Mr Bhattarai’s ATO Notice of Assessment for years ending 30 June 2021 and 2022;

    (7)Mr Bhattarai’s payslips for the period 27 August 2019 - 1 November 2020 from the Company; and,

    (8)2019 - 2020 PAYG Payment Summary from the Company.

37. By way of summary, the representative notes that at the time of the impact of the COVID-19 pandemic, the Company suffered economically and was forced to close down its business.  This adversely impacted Mr Bhattarai’s Subclass 187 visa application as his successful nominator is no longer in business.  Subsequently, Mr Bhattarai was fortunate to find a position as a Cook with J Functions, a position he continues to hold this day.  The representative submits that it would be highly beneficial to J Functions if Mr Bhattarai is permitted to remain in Australia to continue to work as a Cook with the business. 

38. Based on evidence provided, the Tribunal accepts that Mr Bhattarai has the skills, qualifications and experience to successfully work in the position of Cook ANZSCO 351411. He has been working in this position for more than 13 years, both in Nepal and in Australia. Mr Bhattarai’s skills, qualification and experience in the occupation have been favourably assessed by TRA. The Tribunal has also established that the occupation of Cook is currently included in the ACT’s Critical Skills List.[3]  It appears evident to the Tribunal that exceptional economic benefit may result from Mr Bhattarai being permitted to remain in Australia.

    [3] ACT Critical Skills List - Migration

1. Second, the application of relevant legislation leads to unfair results in a particular case. 

2. The representative submits that Mr Bhattarai received misleading advice about the appropriate time to undertake his English test from the registered migration agent with whom he had a discussion prior to lodgement of his Subclass 187 visa application.  And, as confirmed by the Pearson PTE Academic test undertaken just 1 month after lodgement of his Subclass 485 application achieved scores in each of the 4 Test Components which demonstrate that he has ‘competent English’.  The representative submits it is unfair, in the circumstances of this case, that Mr Bhattarai should be deprived of the opportunity to secure a visa to allow him to continue to work in Australia and utilise his skills following his studies here. 

3. Having regard to the circumstances of this case, the Tribunal considers that Mr Bhattarai’s situation may involve unique or exceptional circumstances consistent with the Minister’s Guidelines.  It will refer this matter to the Minister.  The Tribunal will provide the Department with documentation submitted by the representative, both before and after the hearing.  Mr Bhattarai and J Functions may wish to provide further documentation to the Department to demonstrate that this case warrants Ministerial intervention. 

   decision

4. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   Katie Malyon

   Member