Bhatti (Migration)

[2018] AATA 5765

Bhatti (Migration) [2018] AATA 5765 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep Kaur Bhatti
Mr Gulshan Singh Bhatti
Mr Armen Bhatti

CASE NUMBER:  1716281

HOME AFFAIRS REFERENCE(S):           BCC2016/2459173

MEMBER:Ian Berry

DATE:14 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 December 2018 at 8:38am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – English language requirements – vocational English – IELTS Test not taken in required timeframe – incorrect third party advice – not exempt from meeting English language criteria – ministerial intervention by direct approach – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 351, 415, 417
Migration Regulations 1994, r 1.15, Schedule 2, cls 186.222, 183.311

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 Immigration and Border Protection on 7 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (Act).

2. The applicants applied for the visas on 25 July 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or restaurant manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because the applicant had not completed a language test showing she had attained vocational English which was current, that is, obtained with the previous three years before lodging her EN-186 application.

6. The applicants appeared before the Tribunal on 22 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and the applicant’s son aged 24 years.  All members of the family unit were present at the hearing.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is able to satisfy cl.186.222 either by having vocational English or being a person within a class of persons exempt by the criteria in IMMI 15/083.

   English language proficiency

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.222(b). For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.

11. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

12. In this instance, having regard to the date of visa application, the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI.15/005.

13. The applicant had undertaken an International English Language Testing System (IELTS) test on 21 October 2008. As that date was not taking within the three year period preceding the day before making of her visa application on 25 July 2016, it is not a test that can be taken into consideration in deciding an EN 186 visa application.  

14. An English language test cannot be made after the making of the EN 186 visa application Regulation 1.15B Vocational English. The applicant completed and passed an English on 25 July 2016. A further test was completed on 13 May 2018 and she received the required test score of 86 using the PTE Academic. A test score of at least 36 in each of the four test components of listening, reading, writing and speaking. That was achieved, with the applicant having, at the least, the score of 74 in each of these disciplines. Again, this test cannot be taken into consideration.

15. IMMI 15/083 sets out exceptions to the English testing criteria: Clause 186.222 of Part 186 of Schedule 2 to the Regulations, with the evidence both from documents and the applicant:

    ·The applicant gave evidence she does not earn an income at least equivalent to the current Australian Tax Office’s top individual income tax rate.

    ·The applicant confirmed at the hearing of her being a citizen of the Republic of India. She does not hold a passport of a country which would exempt her from the English testing system.

    ·The applicant does not hold a Subclass 444 - Special category visa. She does not hold a Subclass 461 – new Zealand Citizen Family Relationship (Temporary) visa and working for their nominator for at least two years.

    ·The applicant has not completed secondary school or higher education institution where the tuition was delivered in English.

16. Therefore, cl.186.222 is not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

18. Because the applicant cannot meet r.186.222, the applicant’s dependents are unable to meet criteria 183.311(a) of Part 186 of Schedule 2 to the Regulations.

19. Therefore cl.186.311 is not met.

    Ministerial Intervention under section 417 and section 415.

20. The Tribunal has considered the applicant’s request for the Tribunal to consider referring her matter for the exercise of Ministerial intervention pursuant to s.351 of the Act. S.351 provides a non-compellable personal discretion on the Minister for Home Affairs to intervene in a case to grant a visa to an applicant after an unsuccessful review application, if the Minister considers that there are unique or exceptional circumstances to do so.

21. The guidelines for ministerial intervention are set out on the Department’s website: >

    The Tribunal acknowledges the unfairness raised by the applicant about the applicant’s ability to pass all the English language tests, but for the reason that she was outside the period when the test should have been completed, those tests do not count.

22. The applicant acknowledges that it seems, should application for review be unsuccessful meaning that the Tribunal affirms the delegate’s decision, then the only means by which she and her family are able to remain in Australia is through Ministerial intervention: The applicant made a forceful submission as to why the ministerial intervention ought to be seriously considered, however it is for the Tribunal to consider the submissions and whether they are relevant to the matters allowing for the intervention. The Tribunal summarises the applicant’s submissions:

    ·Her current employer provided the name of a migration representative to act for her in the EN-186 visa process. Unfortunately this migration agent did not advise her to complete her English language test in the three year period ending on the day before the making of her application. To record her attempts to ‘set the record straight’, beside submitting to the Department the IELTS test dated 21 October 2008 where she achieved the results of listening 5.5, reading 5.5, writing 6.0 and speaking 6.0 with an overall band score of 6.0, it could not be taken into account. She also completed further English tests which are detailed hereunder:

    oPTE Academic completed on 13 May 2018 with the overall band score of 86.

    oEnglish test date either not disclosed or indecipherable TOEFL with a total score of the 106.

    ·The applicant’s husband has a qualification in the security industry and presumably he is employed in that sector. Thus he adds to the applicant’s employment by being gainfully employed and adding to the Australian economy.

    ·The applicant’s son, now aged 24 years, has lived for most of his life in Australia and it would be unfair to him to return to the Republic of India where he has little or no connection. He has adapted to Australia, educated in Australia and is seeking tertiary qualification in a reasonably unique area.

    ·The applicant has completed her primary school and most of her secondary education in India, and it is expressed that this constituted nearly 4 years of learning academic subjects in the medium of English. She has also completed her Diploma in Management in English in Australia. This omission does not suggest that she comes within the exception of having been taught in initial five years or more at a secondary or tertiary institution.

    ·The applicants employer her has given her a reference and it would be appropriate to set out in full those parts of the reference which have value with that restaurant.

    Spicy Affair Indian Dine In & Take Out, Kenmore, has been serving traditional Indian cuisine for over seven years… Sandeep Bhatti has been working for Spicy Affair for the last five years as a manager. Her significant contributions over that period have contributed to substantial improvements in customer service, efficiency, and cohesion within our work team. Accordingly, these attributes have positively affected the restaurants turnover and bottom line.

    Sandeep has proven to be a great asset to our organisation since you commenced with us, thanks to her warm nature, focused mind, and strong work ethic. We are most happy to continue this productive relationship into the future.

    Signed (name withheld by Tribunal) Proprietor.

    ·The submission continues with the statement that the Act and Regulations, in particular r.186.222 in schedule 2 of the Regulations, does not properly consider the applicant’s exceptional circumstances, and the following observations are made:

    oIgnorance that an English test had to be completed by the former migration agent and the fact that Ms Bhatti was later admitted to hospital Resulted in her being unable to complete her English Tests as required by the Department of Home Affairs. Ms Bhatti has been in Australia since 2009. Ms Bhatti and her husband Mr Gulshan Bhatti have made friends and contributed to the Australian economy by both working hard and paying their taxes, as any hard-working Australians would.

    oTheir son, Mr Armen Bhatti, has completed his studies, developed deep and enduring friendships with Australians, is in a committed relationship, and has assimilated into the Australian way of life.

    oThe Bhatti family go to their local seek temple regularly and provides voluntary community service whenever it is needed.

    oSince being in Australia, in accordance with the Enquiry into Migrant Settlement Outcomes (Submission 73), the Bhatti Family have made a positive contribution to this country and fully dissipate in her customs. Australia is a culturally and linguistically diverse nation, which has traditionally welcomed hard-working families, such as the Bhatti family, willing to contribute to the development of this great nation.

    oIt Would Be Unfair for and to Trim Metal to the Bhatti Family to permanently return to India since the Bhatti family have worked so hard to successfully assimilate into our society. Their son, Mr Amen that he has spent most of his life in Australia, with little comprehension of the Indian way of life. His mother tongue is English and he has limited understanding of Hindi or other Indian languages since he has spoken English all his life.

    oMr Armen Bhatti enjoys his studies with particular interest in Chemistry where he applies his talent in titration and forensic science.

    oMr Amen Bhatti attended the regional titration competition held at QUT, a Brisbane based university, in 2014 and was awarded with a high distinction certificate for been ranked seventh in the entire State of Queensland. He also received a standing ovation from the whole school during assembly for his achievements.

    oWithout ministerial intervention the Bhatti family will lose so much from so little; a migration agents neglect and advising Ms Bhatti to sit and English exam resulted in the Department of Home Affairs refusing her a 186 visa.

23. The ministerial intervention power is preambled with the following general ministerial intervention principles:

    a.It is the general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia.

    b.Consideration of a case for intervention is at the discretion of the Minister and is not an extension of the visa process.

    c.If a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for the Minister to intervene.

    d.The Minister will view a case unfavourably if the person has not complied with the conditions of a previous visa or has provided false or misleading information to the Department or any other relevant authority or has been an unlawful noncitizen.

    e.The Minister has the expectation that any person applying for ministerial intervention be a lawful noncitizen if they are in the community when they make their intervention request and remain a lawful noncitizen until the request is finalised.

    f.That persons will cooperate in ensuring that their travel documents are available and valid.

    g.There is expectation that they will continue to engage with the Department and assist with any enquiries, particularly those concerning their identity.

    h.There is the expectation that any person requesting an intervention to the Minister, will continue to make arrangements to leave Australia while the request has been processed. If the request is unsuccessful, then the Minister expects any person who is the subject of the request to leave Australia.

24. The factors the Minister is required to take into account are set out as:

    ·Cases that have one or more unique or exceptional circumstances, such as those described below may be referred to the Minister for possible consideration of the use of the Minister’s intervention powers:

    oStrong compassionate circumstances that if not recognise would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    oCompassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    oExceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    oCircumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application are relevant legislation leads to one fair or unreasonable results in a particular case.

    oThe Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.

    oA person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to the personal security, human rights or human dignity if they return to the country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.

    oThe person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non--refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person been removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in s.36(2A) of the Act.

25. The Tribunal acknowledges the forceful submission made by the applicant. However, the ministerial direction (summarised above) on balance has not satisfied the Tribunal that to the applicant’s circumstances are unique or exceptional. Having made that decision, is available for the applicant’s migration agent to seek ministerial intervention by direct approach.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Ian Berry
    Member