Calixto Alves Filho (Migration)

Calixto Alves Filho (Migration) [2024] AATA 953 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Manoel Calixto Alves Filho
Mrs Sirlene De Souza Vieira Alves
Master Paulo Victor De Souza Calixto
Ms Caroline De Souza Calixto
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2204278
HOME AFFAIRS REFERENCE(S):          BCC2019/4918100
MEMBER:Ian Berry
DATE:12 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 12 April 2024 at 1:15pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Labour Agreement stream – position of Skilled Meat Worker – functional English – Meat Industry Labour Agreement – second visa application contribution – specified language test results – English suitable to perform the occupation confirmed by employer – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Immigration (Education) Act 1971, s 4
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cl 186.243; Schedule 4; r 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 March 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 October 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Labour Agreement stream, to work in the nominated position of Skilled Meat Worker ANZSCO occupation code 831211 (the nominated position).
The delegate refused to grant the visas because the applicant did not meet cl 186.243(2) of Schedule 2 to the Regulations because the applicant did not satisfy the Minister of his having sufficient English as required by the Regulations. In particular, ‘[to] date, the nominee has not presented to the Department evidence of English that meets the current Meat Industry Labour Agreement set out between by the Minister for Citizenship and Multicultural Affairs (Minister) and JBS Australia Pty limited sign 29 March 2018 by JBS Australia Pty Limited.
The applicants appeared before the Tribunal on 8 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from daughter Ms Caroline De Souza Calixto, concerning her dependency of on her parents. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal affirms the decision not to grant the applicants’ Employer Nomination (Permanent) (Class EN) visas.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The application for review is whether the applicant satisfies 186.243(2) of the Regulations, or alternatively satisfies functional English or is otherwise not required to satisfy functional English by the payment of a second visa application contribution (the VAC 2).
Relevant facts and background
The applicant is an employee with JBS (JBS) and is employed as a boner under the nominated position. Except for a very short period, the applicant has been and continues to be employed by JBS in the nominated position under Meat Industry Labour Agreement dated 29 March 2018 (called the MILA).
Under MILA, the applicant was granted the 457 visas the last of which was on 6 October 2015. Under MILA, the applicant was not required to provide evidence of his English proficiency.
On 1 October 2019, JBS nominated the applicant for a 186 visa for the nominated position under the Labour Agreement stream. Simultaneously, the applicant applied for the 186 visa (the 186 visa).
On 23 September 2019, JBS and the applicant enter into an employment agreement dated 15 September 2019, upon being successful on his 186 visa application, he will be employed by JBS.
The JBS nomination application received approval on 26 October 2021. The applicant’s 186 visa application was refused because he did not have the level of English required.
The applicant and his wife have two children (collectively the applicants). Daughter Caroline de Souza Calixto is in a de facto relationship with her Mr Halcrow, together have one child. In her evidence before the Tribunal, Caroline confirmed now not being dependent on the applicant.
IELTS test result dated 11 June 2020, provided by the applicant having the following results:
·Listening   1.0;
·Reading   1.0;
·Writing   1.0;
·Speaking   3.5;
·Overall band score                1.5.
Documents relevant to reg 186.243(2)
Documents submitted by the applicant relevant to his meeting the English requirements:
·Letter 9 August 2020, JBS to Department with the following enclosures:
oSchedule 4 Concessions relating to visa criteria covered by this Agreement,
oStatement of completion from gotrain Industry statement of completion certificate for applicant undertaking online English language training for the months of August and September 2017, October November and December 2017, March 2018, March 2015, August 2014, July 2014, February and March 2017, April and May 2017, January 2017 and June and July 2017.
·Letter dated 26 October 2021, from the Department to JBS – approval of nominated position is an approved appointment in the ENS Nomination.
·Notice of decision dated 26 October 2021 – nomination approval notice for subclass 186 visa relating to JBS Australia Pty Ltd and the applicants.
·Letter dated 9 August 2020 – JBS to Department with submissions.
·Email dated 13 November 2019 – Department to JBS responding.
·Email dated 13 November 2019 – JBS to Department
·Email dated 13 November 2019 – Department to JBS.
·Email dated 18 November 2019 – JBS to Department.
·Email dated 27 April 2020 – JBS to Department.
·Email dated 23 April 2020 – Department to JBS.
·Letter dated 25 June 2020 – JBS to Department.
·Confirmation of enrolment dated 15 August 2023 – TAFE Queensland South Toowoomba.
·Payment advice dated 25 October 2023 – JBS payment of salary to applicant.
·Payment advice dated 1 November 2023 – relating to employee De Souza Vieira Alves.
·Payment advice dated 25 October 2023 – relating to employee De Souza Vieira Alves.
·Letter dated 6 November 2023 – Meat Processors (managed workforce) to De Souza Vieira Alves.
·Birth certificate dated 25 January 2022 – Anna Ayla Calixto Halcrow.
·Letter of support dated 5 November 2023 – Kaye Riguerral.
·Statutory declaration declared on 4 November 2023 – Jennifer Jean Stanley.
·Letter of support undated – Ander Dias.
·Letter dated 7 November 2023 – Clothier Anderson Immigration Lawyers (CAIL) to AAT.
·Email dated 8 November 2023 – CAIL to AAT.
·Translation dated 7 November 2023 – Department of employment and salary policies concerning the applicant and her his employment identification in Brazil.
·Letter dated 30 November 2023 – JBS submission.
·Letter 1 December 2023 – CA to AAT submission.
·Letter and decision record dated 7 March 2022 – Department to applicant.
·Decision record dated 7 March 2022 – Department to applicants.
·Application for Permanent Employer Sponsored or Nominated Visa dated 1 October 2019.
·Letter dated 15 September 2019 – JBS to applicant, employment offer and acceptance.
·Letter dated 20 September 2019 – employment reference from JBS.
·Letter dated 21 July 2011 – appointment of the applicant (dual translation).
·Personal particulars of assessment including character assessment dated 24 September 2019 and 26 September 2019 respectively – completed by the applicant and the applicant’s wife Caroline de Souza Calixto.
·Letter dated 11 October 2019 – Department to applicant requesting more information relating to the Employer Nomination (subclass 186) visa application.
·Email dated 3 November 2021 – CAIL to Department further submissions.
·Email dated 19 January 2021 – CAIL to Department.
·IELTS test report form dated 30 May 2020 – undertaken by the applicant.
·Letter dated 29 January 2021 – CAIL to Department requesting delay in processing of nomination and associated Visa for nomination relating to the applicant.
·Letter dated 7 March 2022 – annexing decision record from Department to the applicant.
·Email dated 2 February 2022 – Department to CAIL, advising of no holding off of finalising the visa application until new labour agreement completed.
·Email 3 November 2021 – CAIL to Department attaching IELTS report dated 11 June 2020.
·Email dated 9 February 2022 – CAIL to Department.
·Email dated 17 February 2022 – CAIL to Department with submission.
The applicant’s claim to have satisfied his English proficiency
The applicant’s Letter dated 7 November 2023, sets out the submissions by the applicants challenging the decision of the Minister’s delegate two grounds:
·The Minister or the Tribunal has a discretion to ascertain whether the applicant has attained a level of English to perform the occupation required by the applicant’s position.
·The MILA makes provision for the payment of a VAC 2 instead of having a test of the applicant attaining functional English.
First claim - the applicant does not need to provide proof of functional English
The applicant contends the standard English language proficiency level for an applicant in the 186 visa Labour Agreement stream, as stipulated in reg 186.243(2), is a level of English that is ‘suitable to perform the occupation to which the position relates’[1]. It is a broad discretion for the Minister or in the alternative the Tribunal to consider all the relevant evidence.
[1] Attachment A sets out regulation 186.243.
The applicant’s supporting evidence which should be considered in supporting this broad discretion is:
·The 15 years of employment with JBS.
·The applicant undertaking various English courses where by inference he possesses a level of English language proficiency suitable to perform the occupation of a meat boner and slicer.
·A support letter dated 25 June 2020, from Cristianne Dias HR manager with JBS[2], specifically confirms the applicant’s suitability in this English language proficiency level to perform the occupation in the nominated position.
[2] Ms Cristianne Dias is the HR manager at JPS Australia, Beef City Plant, Toowoomba.
The applicant provided to the Tribunal, the Department’s Procedural Instruction which is reproduced below and relied on :
3.6.12 English proficiency
Subclause 186.243(2) requires the Subclass 186 Labour agreement stream applicant to have the English language skills that are suitable to perform the occupation in which the position relates. This means that the level of English that will be accepted is that which was approved under the Labour Agreement. Underlining is made by the applicant’s legal practitioner.
Where a labour agreement stream visa applicant is required to provide evidence of English proficiency for the grant of a visa, the applicant may use scores obtained from any of the approved English tests, specified by the Minister in a legislative instrument, as evidence of proficiency.
English language settings in template labour agreements[3] will generally only reference IELTS scores to establish required minimum English thresholds, with the term “or equivalent” added to clarify that any approved English tests specified by the Minister in a legislative instrument is acceptable. For labour agreements that do not contain the term “or equivalent”, this should not be interpreted to mean that the visa applicant is limited to an IELTS test to demonstrate proficiency.
Where exemptions under the TRT stream or DE streams are in place that remove the requirement for an ENS visa applicant to demonstrate English proficiency, these exemptions will apply to LA stream applicants, even if exemptions are not specified in the LA.
[3] the template a labour agreement is a template set up for future applicant contemplating entering into a labour agreement with the Minister. It is available via a link.
Second claim – VAC 2
The second claim is whether the law or the MILA allows for the payment by the applicant of VAC 2 in lieu of providing evidence of his having functional English. The applicant relies upon Attachment B, or so much of Schedule 4 where it refers to ‘Subclass 186 visa’ states that the applicant who had a current Subclass 457 visa was not required to provide evidence of English language proficiency at the time of the grant of his 457 Visa and provides evidence as prescribed in the Migration Regulations for meeting the English.
It is argued, in supporting the second claim, that the applicant ‘fall under the second scenario set IELTS above and, in determining what ‘evidence as prescribed in the Migration Regulations for meeting functional English’ other relevant provisions of both Schedule 1 and Schedule 2.
The applicant relies on the following Procedural Instruction:
all ‘Schedule 1 Items 1114B(2)(b)/1114C(2)(b)[4] require that prior to visa grant, the following persons must be formally assessed as to whether they have functional English. If they do not have functional English, they must pay the second instalment of the VAC (refer to PI: Div2.2A - Visa application charge - The second instalment of the visa application charge):
·secondary applicants who were 18 or over at the time of application
·adult primary applicants who are otherwise exempted from the English language criterion are required to pay the second instalment of the VAC if they are assessed as not having functional English. [emphasis added]
[4] Schedule 1 item 1114C(2)(b) refers to the 187 visa.
Only item 1114B(2)(b) refers to an application for a 186 visa. The second references to an applicant for a 187 visa. The Procedural Instruction
The claim follows - the payment of the VAC 2 in lieu of providing the evidence that the applicant has functional English is permitted under the terms of the relevant MIA. The applicant cites other evidence which is set out in the Christiane Dias letter dated 25 June 2020 where applicants had their visa application is approved because of the payment of the VAC 2.
Summarising the Ms Christiane Dias letter, she states ‘I understand we have in the past had the opportunity of having the primary [applicant] pay a VAC 2 with approval of nominations with applicants that could not evidence functional English. The letter then sets out two examples of applicants who to have no functional English which both were approved by the payment of the VAC 2.
Regulation 186.243 is in ATTACHMENT A. The applicant contends that reg 186.243(2) requires adherence to the terms of the Labour Agreement, and therefore ‘mandates, … the application of a broad discretion by the decision-maker including, on review, the Tribunal.’
Supporting the argument, the applicant contends that the evidence supporting this interpretation is the applicant having worked in the role of bone for over 15 years and having undertaken various English language courses. It results in the applicant clearly possessing a level of English language proficiency suitable to perform the occupation of a meat bone and slicer.
Also in support, is the letter dated 25 June 2020, from Ms Cristianne Dias the HR Manager of JBS, specifically confirming the suitability of the applicant’s English language proficiency level to perform his role in the nominated position.
Conclusion and reasoning
The criteria for the Labour agreement stream English requirements are embedded in regulation 186.243(2) and state that the applicant is to have the English language skills suitable to perform the occupation in which the position relates.
The applicant having suitable language skills to perform his nominated occupation is expressly set out in the applicant’s employer’s agreement with the Minister.
The MILA established a ‘suitable language skills’ for applicants who wish to progress through to a 186 Visa. The MILA established the terms of suitable language skills which are set out in Schedule 4 included in ATTACHMENT B.
The MILA Schedule 4 expressly referred to those applicants (of which the applicant is included) who cannot meet the standard skilled visa program by providing a path for that applicant to have sufficient English to perform the nominated occupation which is:
(a)If the applicant can demonstrate an IELTS overall test score of 5.0 without reference to any minimum categories score. Note that the Procedural Instruction can refer to other equivalent recognised tests.
(b)Alternatively, for an applicant holding a 457 visa, who was not, and did not have evidence of English language proficiency at the time of their 457 visa, and provided evidence of meeting the Regulations for satisfying the requirements of functional English, can satisfy the English test requirements for the 186 Visa.
It is for the Tribunal to determine what is functional English and whether the applicant has achieved a test result equivalent to functional English. Section 5(2) defines whether a person has functional English:
Section 5(2): For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
(b)the person provides the Minister with prescribed evidence of the person's English language proficiency.
The Regulations refer to sec 5.2 in reg 5.17(2)(b):
For the purposes of paragraph 5(2)(b) of the Act (dealing with whether a person has functional English), the evidence referred to in each of the following paragraphs is prescribed evidence of the English language proficiency of a person:
(a)     evidence specified by the Minister in an instrument[5] in writing for this paragraph;
(c)     evidence that:
(i) the person holds an award (being a degree, a higher degree, a diploma or a trade qualification) that required at least 2 years of full-time study or training; and
(ii)  all instruction (including instruction received in other courses for which the person was allowed credit) for that award was conducted in English;
(f)      evidence that the person has been assessed as having functional English by the provider of a course that is an approved English course for the purposes of section 4 of the Immigration (Education) Act 1971;
(j)      if:
(ii)  evidence referred to in paragraph (a) cannot be provided by the person; and
(iii)  it is not reasonably practicable for the person to attend at a place where, or time when, he or she could be subjected to a test mentioned in paragraph (f);
evidence that the person has been determined by the Minister, on the basis of an interview with the person, to have functional English.

The Tribunal has considered carefully the submissions made by the applicant’s legal practitioner and is satisfied the applicant did hold (or has held) a 457 visa obtained under a MILA, that he had undertaken an approved English language test which had not achieved functional English of a standard equivalent to an IELTS overall band score of 5.0.
The Tribunal is not satisfied as there is no evidence of the applicant’s primary and secondary education was taught in English; there is no words that he had completed at least 5 years of secondary education and institutions in which all instruction was conducted in English and no evidence has been provided of the applicant achieving and IELTS test where the average band score of at least 4.5 based on the 4 test components of speaking, reading, writing and listening 4 achieved, including an English testing organisation equivalent to IELTS where the test score is at least the standard of the IELTS test.
There is no evidence of the applicant completing in Australia at least one year of full time study or equivalent part-time study towards a degree, higher degree, diploma or associate diploma at an institution where all instruction was conducted in English.
The applicant’s submission referred to as claim 1 has been carefully considered and does not provide evidence supporting the applicant having and English level equivalent to functional English.
The applicants claim 2 submission with is inapplicable to an applicant relying on VAC 2 payment. The applicant must achieve at the least a functional level of English or its equivalent under the MILA. The intention of Schedule 4 to ensure that 457 Visa holders have an opportunity to satisfy functional English either through the Labour agreement stream or the MILA. In this case the applicant has not achieved functional English though it is acknowledged his attempt to do so by undertaking Internet based English tuition. Clearly, this is insufficient to satisfy functional English.
The Tribunal finds the applicant has not achieved functional English on the evidence presented.
Therefore, cl 186.243 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Labour Agreement 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 Labour Agreement stream have not been met, the decision under review must be affirmed.
Ms Caroline De Souza Calixto has provided evidence which if accepted provides that she is not dependent on the applicant or the applicant’s wife. The Tribunal does not make any finding as it is a matter for the Department to consider.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Ian Berry

Member
ATTACHMENT A
186.243
(1)The applicant has qualifications, experience and other attributes that are suitable for the position.
(2)The applicant has English language skills that are suitable to perform the occupation to which the position relates.
(3)Either:
(a)the applicant has worked in the occupation to which the position relates or a related field for at least 3 years; or
(b)the Minister considers that it is reasonable in the circumstances to disregard paragraph (a).
(4)If the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the tasks of the occupation to which the position relates, the applicant demonstrates that he or she has those skills in the manner specified by the Minister.
ATTACHMENT B
‘Schedule 4 Concessions relating to visa criteria covered by this Agreement
Item 1Qualifications and Experience
(a)…
(b)…
Item 2English Language
Subclass 457 and TSS visas
Overseas Workers nominated under this Agreement, who are unable to meet Standard skilled Visa programme requirements, can be considered to have sufficient English to perform the nominated occupation if:
·they demonstrate an International English Language Testing System (IELTS) overall to score of at least 5.0 with no minimum test score;
or
·was not required to provide evidence of English language proficiency at the time of the grant of their most recent subclass 457 visa under previous meet industry labour agreements.
Subclass 186 visa
Overseas Workers nominated under this Agreement, who are unable to meet Standard skilled visa program requirements, can be considered to have sufficient English to perform the nominated occupation if:
·they demonstrate an International English Language Testing System (IELTS) overall test score of at least 5.0 with no minimum test score;
or
·are a current Subclass 457 visa holder who was not required to provide evidence of English language proficiency at the time of grant of their Subclass 457 visa; and
·provides evidence as prescribed in the Migration Regulations for meeting functional English.
Attachment A1
ATTACHMENT C

The applicant’s submission for the Tribunal to consider a recommendation to the Department for the Minister’s consideration to exercise sec 351.

(a)The contribution the applicant and family have made to the community and economy of Australia;
(b)The close ties made by the applicant’s family to the Australian community;
(c)The compassionate circumstances citing the serious ongoing and irreversible harm and continuing hardship to the applicants;
(d)the unreasonable and unfair result citing that the applicants have been in Australia for 15 years working almost exclusively for JBS;
(e)The applicant provides documents which is relevant to the consideration of the referral.[6]
[6] C 63 – 64

The applicant provides sec 351 submissions support their referral to the Minister.The submissions have footnotes which have not been included:

MrFilho was born on 8 April 1976 in Brazil and is currently 47 years old. He is married to Mrs Sirlene De Souza Vieira Alves and they have two children together, Caroline and Paulo.
MrFilho and his wife first arrived in Australia in 2008, 15 years ago, as holders of Temporary Skilled (subclass 457) visas. He worked as a boner at JBS Brazil and was sponsored by JBS Australia to also work here as a boner. Mr Filho sold his belongings in Brazil to afford to pay for he and his wife’s flights to, and accommodation in, Australia. He could not afford to bring his daughter and son with him at the time and left them in Brazil, where they lived with different family members; eventually joining him and his wife here in April 2011.
Carolineis currently 25 years old. She is in a de facto relationship with Stephen Joseph Halcrow and they have one daughter together, Anna Alya Calixto Halcrow, who was born in Australia and is who 20 months old. Stephen is a New Zealand citizen living in Australia as the holder of a Special Purpose (subclass 444) visa. Stephen is working as a Manager at Australia Country Choice.
Paulo is currently 18 years old. He started year 11 at Harristown State school but did not complete year 11. He has been attempting to find work to help to ease his family’s financial burden but, unfortunately, he has not been able to secure employment primarily due to the uncertainties surrounding his visa status and future in Australia.
Mr Filho commenced work at JBS Australia as a skilled meat worker on 21 July 2008 and worked there until 1 August 2010, when he moved to work for G&K O’Connor in Victoria until 5 August 2011. He returned to work for JBS Australia on 19 August 2011, where he continues to work on a full-time basis from 5:00am to 2:00pm, five days a week. Mr Filho holds a positive skills assessment as a Meat Boner and Slicer, dated 9 September 2019. As a skilled meat worker, Mr Filho utilises specialised tools and equipment to bone carcasses into portions in accordance with organisational specifications.
MrsFilho worked as a packer at JBS Australia from 21 July 2008 until 1 August 2010, when she also moved to work for G&K O’Connor until 5 August 2011, resuming work with JBS Australia on 19 August 2011 until late 2022 when the pain arising from the shoulder injuries she had sustained due to her repeated movements as a packer were no longer able to be managed with steroid injections to relieve the pain. She made a Workcover claim which was rejected. She was told by JBS Australia that the business intended to let her go due to her inability to perform her role as a result of her injuries and was encouraged to resign, which she did. Mrs Filho is currently working at Australia Country Choice as a packer where the work is less labour intensive compared with the work at JBS Australia as there is more machinery available to her to assist with her work.
MrFilho lives in Toowoomba, Queensland. With the exception of one year between August 2010 and August 2011 when he relocated to Victoria, he has spent his entire residence in Australia in Toowoomba. Mrs Filho, Caroline and Paulo are currently living in Brisbane. Mrs Filho moved to Brisbane in late 2022 when she commenced work at Australia Country Choice and Paulo moved with his mother. Caroline had moved to Brisbane sometime earlier to live with her de facto partner. They each live in rental accommodation within the same building. They see each other often, as Mrs Filho helps Caroline and Stephen look after their daughter, Anna.
MrFilho’s main language is Portuguese. He completed a series of English language training through the registered training organisation, Go Train Industry, from 2014 to 2018. He recently enrolled in an English language course at TAFE Queensland in Toowoomba, where he studies once a week for two hours per class.
Mr Filho was granted a further Temporary Skilled (subclass 457) visa on 1 October 2019, under the sponsorship of JBS Australia in the nominated occupation of Meat Boner and Slicer (ANZSCO 831211). That visa ceased on 11 April 2022.
On1 October 2019, Mr Filho and his family applied for ENS (subclass 186) permanent visas in the Labour Agreement stream under the sponsorship of JBS Australia, in the nominated occupation of Meat Boner and Slicer. The associated nomination application made by JBS Australia was approved on 26 October 2021. That approved nomination remains current.
On7 March 2022, Mr Filho’s ENS (subclass 186) visa application was erroneously refused on the basis that he did not meet the English competency requirements contained in subclause 186.243(2) of the Regulations, which relevantly provides:

Exceptional benefit to Australia
It is our submission that Mr Filho and his family’s ongoing residence in Australia would continue to bring exceptional economic, cultural and other benefits to Australia.
Mr Filho has been working solely as a Meat Boner and Slicer (ANZSCO 831211) since arriving in Australia in 2008. The role involves trimming and cutting meat from bones, sides and carcasses. It is a physically demanding job.1 According to the Australian Government website Labour Market Insights, the median full-time earnings for Meat Boners and Slicers are $1,178.00 per week, which is much lower than the median earnings of $1,593.00 for other jobs.2 The average full-time weekly salary for a Meat Boner and Slicer according to another Australian Government website, Your Career, is $1,030.00 per week, even lower than the average identified in Labour Market Insights. Mr Filho, himself, earns $1,456.55 per week. It is apparent from this data that the occupation of Meat Boner and Slicer is a physically demanding job that provides minimal remuneration relative to other work thus making it a job in respect of which overseas workers are required in considerable number. Mr Filho’s experience, commitment and hard work as a Meat Boner and Slicer to date and into the foreseeable future brings exceptional benefit to Australia’s economy and community and he has been, and continues to be, a valuable and loyal blue collar worker.
As stated, Mr Filho and his family are from Brazil and speak fluent Portuguese. Mr Filho lives in Toowoomba, a regional part of Queensland, while the rest of his family are in Brisbane. According to 2021 Census data, 12,544.00 residents of Queensland were born in Brazil.3 This is a significant migrant community within this state. Mr Filho and his family are members of a migrant community with the fastest growth rate of a nationality in Queensland.4 As a regional city, Toowoomba hosts many cultural events and an example of this is the International Street Fiesta which was held on 28 October 2023.5
Mrs. House, an organiser of the Fiesta said:
Toowoomba continues to draw new residents from across the world. The fiesta is a chance for our different cultural groups to showcase their individual customs and heritage through songs and dance

[117397 mission
In 2019, with over 12,000 Brazilians studying in Queensland, the then Lord Mayor emphasised the important role that international education and training experiences can play in building lasting relationships with investors and entrepreneurs of the future.8 Decades of research and studies show the positive impacts that cultural diversity has in Australian society including the economy, tourism, education and the valuable assets of general community vibrancy, resilience, and adaptability. In an article from 2017, SGS Economics and Planning noted:
This research suggests several significant economic benefits of cultural diversity. A greater variety of exports and related income, for instance, from ethnic ‘flavour’ products, crafts, and skills. Furthermore, visitor numbers and tourist expenditure increase due to the appeal of culturally diverse areas and cuisines. While inward capital, investment and export opportunities arise from international connectivity between immigration and ‘home’ countries. In turn, this leads to healthier rates of business formation, product development, and innovation. Creating a more productive labour force, inspired by the opportunities and new ideas arising in such environments as a result.9

TheQueensland Government has been committed to embracing and encouraging multiculturalism in its state. The 2023 – 2024 Multicultural Action Plan (the third of its kind) has six actions that build on previous action plans, which include building the economy and community. The Queensland Government is committed to supporting an environment of opportunity and to achieve improved social and economic outcomes for the community, including people from culturally and linguistically diverse backgrounds. 10 The Minister’s forward to the 2023 – 2024 Action Plan states
Webenefit enormously from diversity and this Action Plan will build on our strengths to support thriving communities by addressing the challenges we face to ensure equitable access and opportunity for all.
The Action Plan goes on to say, at page four:
ThisMulticultural Action Plan will build on this good work as we work to promote an inclusive, diverse and welcoming community by 2032 and create great legacies by enhancing our cities and regions for all who reside in Queensland. [emphasis added]
Further,this matter highlights most acutely the real human impact of extended (in this case 15 years) and sometimes never-ending temporary residence trend for migrants which, in the long-term, is not beneficial for the Australian economy, for social cohesion or for the migrant individuals and their families concerned. More than one million temporary migrants are living in Australia at any given time,12 a significant change from the permanent settler model that characterized Australian migration in the 20th century. This shift challenges Australia’s claim of being a democratic country committed to a system of citizenship-based multiculturalism13:
Politicaltheorists Joseph Carens, Michael Walzer and Martin Ruhs all agree that it is ethically unacceptable to render migrants indefinitely temporary. This is because that risks creating a group of “second-class residents” excluded from the political community of the nation and the benefits and rights of citizenship. Yet this is what can happen in Australia today…
Consequently, the starting point for a consistent liberal response to temporary migration must be a pathway to permanent residence that is, after a certain period of time, unconditional – not one that depends on an employer’s endorsement, or a particular qualification, or the ability to achieve a certain score on an English- language test, or a person’s health status, or whether they arrived by plane with a visa rather than by boat and without one…
Migrantswho live in Australia for a significant time, who contribute to the economic life of the nation through their labour and their taxes, who possibly pay fees to study, are people who, for all intents and purposes, make Australia their home. [emphasis added]
Ina 2016 article in The Australian, journalist, Tom Dusevic, examines Peter Mares’ research into the impacts of Australia’s shift to temporary migration14:
Maresfocuses on those who don't take the second step and are indefinitely or permanently temporary: disposable workers locked forever in the status of ''not quite Australian''. They are vulnerable to exploitation and sinking into - bureaucratic abysses:
Theylive here, contribute to the economic and cultural life of the nation, pay its taxes and obey its laws, but lack access to a range of government services and benefits, and are denied the right to vote…
ButMares argues even temporary migration is more than a transaction. “The longer a migrant stays in the country, the more the contractual nature of the original arrangement recedes into the background and the more the sense of attachment and engagement with the host nation tends to grow.” Mares believes our policymakers are kidding themselves if they think the expansion of various forms of temporary migration can be neatly kept in a separate box from questions of settlement, residency, citizenship, rights and obligation.
Theissue of treating temporary migrants as ‘transnational’ is also explored in the Conversation article ‘How Temporary Migration is Changing Australia - and the World’15:
Ifgovernment treats migration as a purely contractual arrangement, then we will encourage migrants to treat their relationship to Australia in exactly the same way: to ask “what is in it for me, what can I get out of this country?” rather than “what is my connection to this country and what are my obligations?”
A true multiculturalism is one that invites16:

every individual member of society to be everything they can be … supporting each new arrival in overcoming whatever obstacles they face as they adjust to a new country and society and allowing them to flourish as individuals. This is important because 'if people do not feel part of society, this can lead to alienation and, ultimately, social disunity'.
Demonstrated close ties of Mr Filho and his family to the Australian community
As stated, Mr Filho and his wife first came to Australia in 2008 as the holder of Temporary Skilled (subclass 457) visas and his children, Caroline and Paulo, arrived a little later in 2011 at the ages of only ten and six. Since arriving in Australia, they have maintained continuous residence here and developed close and lasting ties with members of the community. Mr Filho and his family have good immigration histories and have been of good conduct in Australia. His children have spent their formative years here and are extremely settled, having known really only their life here.
The length of time Mr Filho and his family have been present in Australia and their level of integration into the Australian community should weigh heavily in the Minister’s decision whether or not to intervene to grant them permanent visas to enable them to remain in Australia and in the Tribunal’s decision to refer the matter to the Minister, if required. During their time in Australia, Mr Filho and his family have established long- lasting friendships and have contributed in a significant manner to the Australian community. In this respect, we refer to the enclosed supporting letters from three of their Australian friends who provide warm and detailed accounts of the valuable contributions Mr Filho and his family have made to their lives.

One support letter from Jennifer Jean Staney, dated 4 November 2023, attests to Mr Filho and his wife being mentors and loyal friends. Jennfier writes as follows:
Ifirst met Carol [Caroline] and her family at the end of 2016 in Toowoomba through a mutual friend… I found her parents Sirlene and Manoel to be great friends and people who I found were great mentors and peers in my life. Carol’s parents had a very positive affect in my late 20’s. I was often invited to their church and church barbeques on the weekend. I became immersed and adopted into their family and Brazilian community…
Iwould pop in for advice from Carol’s parents often even if they had a long day. They are all hard workers within their area of career and future careers. If one was without work, you see them being very active finding a job…
ManoelI often cross paths at the World Gym Toowoomba. I often witnessed he was very well known with the locals, communicated often with members and looked well acquainted in the gym community. I saw both Sirlene and Manoel to be very active within their church. Sirlene with her many talents singing, presenting, organising events, children learning and plays, as well hosting at the churches park barbeques, she would have us do great teaching in ethics, values and moral teamwork games. Manoel who also is very active within the church doing announcements and help with cooking both in the church and park barbeques.
Inanother support letter from Kaye Rigguerra, dated 5 November 2023, she attests to the value that Mr Filho has added to the Australian community during his time in the country. Kaye writes as follows:
Ihave had the privilege of knowing Caroline and her family since 2014, and during these years, I have witnessed that they are actively involved in the Brazilian church as I visited their church a couple of times, they attended services regularly, and their dedication is evident as they volunteer their time to sing as part of the service, bring homemade food to share to the church community and serve in various capacities. After the services they take the time to connect with other members through chats and picture taking, fostering a close-nit community within the church.
Caroline’s parents, who work in meat factory, showed unwavering commitment and hard work despite the demanding nature of their jobs. I remember that they leave for work early and return home to rest, often appearing tired form their laborious day.
Ina further support letter from Jander Dias, Jander attests to the value Mr Filho and his family bring to the Australian community and expresses his hope that they be permitted to remain in Australia:
Sirlene,a multi-talented woman with expertise in decorating and the arts, has graced our local church with her exceptional decorating skills during numerous events. Her artistic contributions have added a touch of beaty and warmth to our gatherings.
Manoel,proud of his long-standing membership in the local community, has consistently extended a helping hand to fellow community members. As a meat worker, he has not only contributed to a vital industry but also taken provide in his profession.
I wholeheartedly believe that Caroline and her family have left an indelible mark on our local community by embracing Australian values and embodying the spirit of giving an support for others. They are a shining example of the positive impact that immigrants can have on our society, and I sincerely hope that their request ot continue residing in Australia is granted.
Thereis no doubt that Mr Filho and his family have very close personal ties to Australia that give rise to highly compassionate circumstances affecting the interests of their Australian citizen and permanent resident friends should they be required to depart. The length of time Mr Filho and his family have been present in Australia, a period of fifteen years, and their level of integration into the Australian community is a highly significant matter in the Tribunal’s determination whether or not to recommend the matter to the Minister. We submit that it weighs most heavily in favour of the Tribunal making a recommendation that the Minister intervene in their case.
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship
Thisfamily have established their lives in Australia. Having been resident in Australia for over 15 years, they have adapted to the Australian way of living. It is thus our very strong submission that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to Mr Filho and his family as well as to their Australian friends and the de facto partner of Caroline and their daughter, Anna, both of whom will be applying for Australian citizenship in the near future.
We note that, from 1 July 2023, certain New Zealand citizens in Australia now have direct access to Australian citizenship from their Special Category (subclass 444) visas, without needing to be granted a permanent visa first. For the purposes of an application for Australian citizenship, New Zealand citizens who arrived in Australia after 26 February 2001 and who hold Special Category (subclass 444) visas are taken to have become permanent residents on 1 July 2022 and, therefore, are taken to have already been an Australian permanent resident for more than 12 months for the purposes of now applying for Australian citizenship, subject to the physical residence requirements.
IfMr Filho and his family were to return to Brazil, they would endure great hardship as they have spent the last 15 years in Australia and are removed from life in Brazil. Mr Filho’s remaining relatives in Brazil are limited to his ill mother, who we are instructed is likely to pass away very soon, and one brother who he financially supports with his income from Australia. Mr Filho has six other siblings, who are living across various countries throughout Europe.
MrFilho instructs that, should he be forced to return to Brazil, he will have limited means to survive. There are limited employment opportunities for a man his age, who has no qualification and has work experience only as a Meat Boner and Slicer.
Brazil’seconomy has been slowly recovering since the Covid-19 pandemic. The population has been supported by large changes to social protection in Brazil, including the Bolsa Familia’ benefits program (which aimed to reduce poverty), but this has resulted in significant reliance and dependency on government support, which has been fiscally unsustainable. With the government reducing its financial support overall, the poverty rate is expected to go back to a pre-pandemic rate at 24.3 percent.17 Unemployment remains high at 7.8%.18
It isclear that Mr Filho and his family would face significant financial and social hardship should they be forced to return to Brazil. They have established a life in Australia over the last 15 years. None of Mr Filho’s six siblings reside in Brazil, leaving them with little by way of a family support system to return to. Further, their children, Caroline and Paulo have spent their formative years in Australia. Both children left Brazil when they were very young, being only ten and six years old when they arrived here. In addition to the significant adjustment they would face relocating to a country they have not lived in since they were only ten and six years old, Caroline and Paulo would also face difficulties obtaining work. Both children did not complete year 12. In Brazil the unemployment rate among young adults with below upper secondary education was 17.8% in 2020.19
Itis clear that Mr Filho and his family would face severe financial and social hardship should they be forced to return to Brazil.
Asstated, Mr Filho’s’ daughter, Caroline, has been in a de facto relationship with Stephen Joseph Halcrow since April 2021, and they have one daughter together, Anna, who was born in Australia and is 20 months old. Stephen is a New Zealand citizen living in Australia and therefore the holder of a Special Purpose (subclass 444) visa. Stephen is working as a Manager at Australia Country Choice. Caroline is a stay-at-home mother; she and her daughter are reliant on Stephen for financial support. This young family is settled in Brisbane. Should Caroline be forced to return to Brazil, this young family would face the unbearable decision about whether to live apart or whether Stephen and their daughter would move to Brazil, a country that is foreign to them where they do not speak the language. Brazil is a poor country and employment is not widely available, let alone without the capacity to speak Portuguese. It would be simply impossible for Stephen to find work there and continue to support their young family. The prospect of severe financial hardship is real for them in Brazil. Further, we note that Stephen and Anna will be able to apply for and be granted Australian citizenship in the near future, upon Stephen having resided in Australia for four years - see;
currently 18 years old and he was only six years old when he first arrived in Australia. He started year 11 at Harristown State High school and has been attempting to find work to help ease his family’s financial burden but, unfortunately, he has not been able to secure employment primarily due to the uncertainties surrounding his visa status and future in Australia. To help his family financially, Paulo has been working casually as a DoorDash driver to provide some financial income for himself and his family. He has also recently looked into volunteering at an aged care facility, as he would like to volunteer with his local community. Paulo, like the rest of his family, is regularly attender at their church. He attends the weekly services and all the youth programs offered at his church.
Carolinecompleted year 11 at Toowoomba State High School and started year 12 although she dropped out before finishing her secondary education. Caroline started a short course in AIN (Assistant in Nursing) but did not finish the course. Caroline is similarly interested in volunteering with the elderly in her community. She has approached Anglicare Aged Care and is hoping to begin volunteering with them in the near future. Caroline previously volunteered at a Red Cross second hand shop for six months in or around 2020. Carline volunteers at her church and assists people in her community with translation of Portuguese to English, sch as attending medical appointments with people and translating the sermon at church services for people. Caroline’s daughter is almost two years old. She hopes to start taking her daughter to play groups to meet other children and for her to meet other mothers.
Best interests of the children
The present case also brings into consideration Australia’s obligations as a signatory to the Convention on the Rights of the Child (CROC). Article 3 of the CROC provides that:
“Inall actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (emphasis added)
Furthermore, Article 28 of the CROC also mandates that:
“States Parties recognize the right of the child to education…”
MrFilho’s children grew up in Australia. Paulo was six years old and Caroline was ten years old when they first moved to Australia. They attended local schools in Toowoomba and developed close friendship groups as they have each spent their formative years in Australia. While a student, Caroline took part in extracurricular activities at school including music, theatre and football. Paulo was enthusiastic about sports, playing in both the soccer and basketball teams at school. Neither Caroline nor Paulo finished their secondary studies but they both studied English in Noble Park for approximately six months. Both, now adult, children are well integrated into the Australian community and have made many close friends.
Mr Filho’s granddaughter, Anna Alya Calixto Halcrow, was born in Australia on 3 January 2022 and, although presently a New Zealand citizen, she will become an Australian citizen in the near future.
Itis submitted that the circumstances of Mr Filho’s children and grandchildren and the fact that they have now spent most of their formative years in Australia compel the Minister to consider Australia’s commitment to Article 3 and to ensure that their best interests are one of the primary considerations in his determination. Department policy notes that a person’s formative years are those years in which they formed a sense of identity and their connection with a place in the world and dictates that greater weight should be given to where the person spent their adolescence (12 to 18 years of age), rather than to where they spent their earlier years. Policy envisages that persons who spent their formative years in Australia would have developed significant ties with the Australian community. Their level of integration and the prolonged period of residence of Mr Filho’s children in Australia since they were only ten and six years old should weigh heavily in the Minister’s decision to intervene and thus the Tribunal’s determination to recommend the matter to him for intervention.
Application of relevant legislation led to unfair or unreasonable results
Asextracted earlier in these submissions, the English language proficiency level for an ENS (subclass 186) visa application in the Labour Agreement stream, as stipulated in subclause 186.243(2) of the Regulations is a level of English that is ‘suitable to perform the occupation to which the position relates’.
Onits face, subclause 186.243(2) of the Regulations provides the delegate, and thus the Tribunal, with a broad discretion about the level of English deemed to be ‘suitable’ to perform the nominated occupation. The assessment of what is the suitable level of English competency for a nominated position is a matter for assessment on a case-by- case basis. For this assessment, we submit that the labour agreement provides guidance but is not determinative or binding. The decision about what is a ‘suitable’ level of English competency for a position is a decision for the delegate of the Department, and the Tribunal, when assessing each individual case.
Interms of whether Mr Filho has the level of English that is suitable to perform the occupation to which the position relates, as required by the Regulations¸ it is strongly submitted that Mr Filho has sufficient English to perform the role of a skilled meat worker. Indeed, he has been performing this role without incident for the past 15 years. Mr Filho commenced employment with JBS Australia in 2008 and has maintained continuous full-time employment with the company for all but 12 months since then.
JBSAustralia itself confirms that Mr Filho has sufficient English language ability to perform the nominated role. We refer the Tribunal to a support letter from Ms Cristianne Dias, Human Resources Manager at JBS Australia, dated 25 June 2020 who writes the following:
‘…Iwould like to confirm that as a long-term skilled worker, Manoel Calixto Alves Filho holds sufficient English language skills to perform the nominated occupation to a high standard and sufficient English language skills to pass a registered MINTRAC assessment which required a large number of core skills to evidence a sound understanding of workplace health and safety, consultation, risk mitigation and the ability to follow policies and procedures in our meat production site.
Manoelis a highly skilled visa holder we wish to retain, who works efficiently and effectively, understands workplace health and safety matters and understands enough English for social inclusion and participation in the workplace and the community.
Manoelalso possess high level skills and has also mentored and trained lower skilled meat workers in our site thereby transferring skills to other workers, both Australian and non-Australian.’’
It is submitted that Mr Filho has the necessary level of English to competently and safely perform the nominated role of meat boner and slicer. Therefore, he satisfies the English language requirement at subclause 186.243 of the Regulations.
Furtherand in the alternative, we note that the template MILA between the Commonwealth Australia and JBS Australia makes available various concessions to the ENS (subclass 186) visa requirements in respect of age, skills, qualifications, employment background, salary and the level of English language proficiency required.20 In respect of English, the concession provided for in the template MILA states as follows:
ENS visa
AnOverseas Worker nominated under this Agreement, who is unable to meet Standard skilled visa program requirements, can be considered to have sufficient English to perform the nominated occupation if:
· they demonstrate an IELTS overall test score of at least 5.0 with no minimum test score;
or
· are a current Subclass 457 visa holder who was not required to provide evidence of English language proficiency at the time of grant of their Subclass 457 visa; and
· provides evidence as prescribed in the Migration Regulations for meeting functional English. 21
Asstated, Mr Filho’s circumstances fall under the second scenario set out above and, in determining what “evidence as prescribed in the Migration Regulations for meeting functional English” are, the relevant provisions of both Schedule 1 and Schedule 2 must be taken into account. As Departmental policy explains concerning the former;
Schedule1 Items 1114B(2)(b)/1114C(2)(b) require that prior to visa grant, the following persons must be formally assessed as to whether they have functional English. If they do not have functional English, they must pay the second instalment of the VAC (refer to PI: Div2.2A - Visa application charge - The second instalment of the visa application charge):
secondary applicants who were 18 or over at the time of application adult primary applicants who are otherwise exempted from the English language criterion are required to pay the second instalment of the VAC if they are assessed as not having functional English. [emphasis added]
Accordingly, the payment by a primary visa applicant of a second visa application charge in lieu of providing evidence that they have functional English is permitted under the terms of the relevant MILA, that being ‘prescribed in’ the Migration Regulations ie Schedule 1 Items 1114B(2)(b). That this is the case is evident from the fact that a number of other visa applicants, the details of which are set out in the attached support letter of Cristianne Dias, HR Manager JBS Australia, dated 25 June 2020, had their ENS (subclass 186) visa applications approved by the Department under the same MILA on the basis of the payment of a second visa application charge by the primary visa applicant who could not provide evidence of having achieved the requisite English language score. That is, the Department has in the past interpreted the relevant MILA in such a way as to permit the grant of visas where the second visa application charge was paid in respect of the primary applicant as prescribed in the Regulations.
Additionally, if, contrary to our submissions above, the Tribunal considers that Mr Filho is required to provide evidence of having a level of English language competency that is stipulated in the JBS Australia MILA, we note that this would be contrary to past decisions and the conduct of the Department in similar cases. It is highly unsatisfactory for the Department to decide like cases differently. In a letter from JBS Australia’s migration agent, Ms Emma Rendina, dated 9 August 2020, she noted that the Department has, on earlier occasions, elected not to impose the English language requirement stipulated in the MILA. The Department has, on more than one occasion and at different times in the past, allowed the primary applicant to pay a second instalment visa application charge where the primary applicant cannot evidence the requisite level of English as stipulated in the MILA rather than refuse the visa application. Two specific examples were provided in Ms Dias’ letter: Mr Fabio Junior Pereira Alves (TRN EGOCFM6NS) and Mr Valdivino Dias Da Costa (TRN EGOMBXDPW2).

Consistentwith this approach, the Department proceeded to approve the present nomination application in respect of Mr Filho. It follows that the associated visa application should have been approved as well. Accordingly, if the Tribunal disagrees with our above arguments and finds that Mr Filho was required to demonstrate an average band score of at least 4.5 based on the 4 test components of an IELTS test in order to be found to have ‘sufficient English’ to perform the nominated occupation, the application of legislation on this occasion has clearly led to an unfair and unreasonable outcome for Mr Filho in all his circumstances and in light of the Department’s past ENS (subclass 186) visa grants in the same circumstances.
Conclusion
Onthe basis of the information outlined above, it is strongly submitted that Mr Filho has established that he has a level of English that is suitable to perform the occupation to which the position relates, as required by subclause 186.243(2) of the Regulations and, in the alternative, that, should the Tribunal determine that the terms of the MILA apply in determining this matter, the payment by a primary visa applicant of a second visa application charge in lieu of providing evidence that they have functional English is permitted under the terms of the relevant MILA, that being ‘prescribed in’ the Migration Regulations ie Schedule 1 Items 1114B(2)(b).
Furtherand in the alternative and without in any way taking way from the above legal arguments, if the Tribunal concludes that only evidence of Mr Filho having achieved an average band score of at least 4.5 based on the 4 test components of an IELTS test, we submit that the unique or exceptional features of this case clearly warrant the exercise of the Minister’s powers under s351 of the Act and that his intervention will address the serious unfairness arising from the situation that Mr Filho and his family now find themselves in, as a result of the inconsistent and capricious application of legislation by the Department. The substantial loss to the Australian community and economy should this family be prevented from remaining in this country in these circumstances are so significant as to warrant the Minister’s intervention in the public interest. Accordingly, we strongly urge the Tribunal to refer the matter to the Minister with a recommendation that he intervene should that be required.’

[5] The legislative instrument referred to is IMMI 15/004 commencing 1 January 2015.

[2024] AATA 953

12 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice