Chinsamy (Migration)

[2019] AATA 5287

Chinsamy (Migration) [2019] AATA 5287 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jerome Luke Chinsamy
Mrs Taryn Nadas
Master Ethan Josiah Chinsamy
Master Jordan Luke Theodore Chinsamy

CASE NUMBER:  1829585

HOME AFFAIRS REFERENCE(S):          BCC2017/4162313

MEMBER:Mr S Norman

DATE:21 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.222(b) of Schedule 2 to the Regulations

Statement made on 21 November 2019 at 3:06pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Metal Machinist (First Class) – English language proficiency  – below minimum required score – exemptions to English language requirements – five-year full-time study delivered in English – benefit of the doubt – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 186.222

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 on 26 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 8 November 2017. 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 (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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Metal Machinist (First Class).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations – English language proficiency.

6. On the day of the first scheduled hearing (23 July 2019), the Tribunal unsuccessfully attempted to contact the applicant by telephone (twice by the mobile phone number he had previously lodged; once to his representative; and once to an alternate mobile phone number). However, on the same day, the applicant subsequently telephoned the Tribunal and provided a mobile phone number. The Tribunal then contacted the applicant on the mobile phone number he provided on the day of the hearing (which was the same mobile phone number as he had lodged previously). On the three occasions a Tribunal officer then dialled the mobile phone number provided by the applicant (on the day of the hearing); this resulted in the recorded response ‘incoming call restrictions’. On the same day of the hearing and sometime later, for the second time the applicant telephoned the Tribunal and enquired about his scheduled hearing.

7. Given the nature of the issues in dispute, and given the applicant had made attempts to engage with the Tribunal, a second hearing (by video conference) was conducted on 29 October 2019. The applicant provided evidence and submissions at the hearing; and the Tribunal also took oral evidence from Ms Taryn Nadas (the applicant wife), Mr Aiden GEE (the applicant’s employer), and Mr Greg ROSS (the applicant’s Pastor). All evidence and submissions were provided in the English language.

8. The applicants were represented in relation to the review by their registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

10. On 8 November 2017, the first named applicant (the applicant) lodged an application for a Subclass 186 visa under the Temporary Residence Transition Stream. This related to an appointment as a Metal Machinist (First Class) (ANZSCO: 323214).

11. 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. Clause 186.222 stated:

    186.222 

    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.

12. 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. ‘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.

13. In this instance, having regard to the date of visa application, the required level is competent English. Regulation 1.15C stated:

    (1)  A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the person is an applicant for a visa; and

    (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and  

    (c)  the person achieved a score specified in the instrument.   

    (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this sub-regulation.

14. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. That relevantly stated:

    5.  SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:
    …..
    D - for paragraph 1.15C(1)(a), the following language tests:

    i. an International English Language Test System (IELTS) test; or

    ii. an Occupational English Test (OET); or

    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv. a Pearson Test of English Academic (PTE Academic); or

    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.- for paragraph 1.15C(1)(c) the following test scores:

    i. an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or
    ii. an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or
    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or
    iv. a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or
    v. a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading, writing and speaking.

    F.- for subregulation 1.15C(2), 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.

15. Further, IMMI 17/058 relevantly stated:

    12 Subclass 186 applicants (Temporary Residence Transition stream) and Subclass 187 applicants (Temporary Residence Transition stream) who are not required to satisfy the Minister that they have ‘vocational English’ (for applications before 1 July 2017) or ‘competent English’ (for applications on or after 1 July 2017)

    For the purposes of paragraphs 186.222(b) and 187.222(b) of the Regulations, the following class of persons is specified:

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

    …..
    13 Application

    (1) This instrument applies to applications for Subclass 186 and Subclass 187 visas made on or after 1 July 2017, and also to applications for Subclass 186 and Subclass 187 visas made before 1 July 2017 and not finally determined by that date. …

16. On 3 June 2018, the applicant lodged with the Department, the following:

    ·     IELTS test dated 7 February 2015. The results were as follows:

    ·Listening        – 6.5

    ·Reading         – 5.5

    ·Writing            – 6.5

    ·Speaking        – 8.0

    ·     colour copy of face page of South African passport

    ·     personal particulars for character assessment form

17. On 23 August 2018, the delegate found that the IELTS test result dated 7 February 2015, did not satisfy the requirement of having achieved a score as specified in r.1.15C(1)(c). After then contacting the applicant, the delegate requested the following information:

    ·     Evidence of five years or full-time study in secondary and/or higher education, with all tuition in English. Higher education is understood to mean tertiary studies at University or equivalent level. Vocational education training courses (VET) where course requirements comprise a mixture of classroom tuition and on-the-job training cannot be accepted. Also not acceptable are English-language courses undertaken for the specific purpose of obtaining an IELTS or equivalent’s score  

    ·     The applicant must have undertaken all studies, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English

    ·     The required total of five years can consist of full-time study at secondary (high school) level only; or it can be a mixture of secondary and tertiary studies; or it can consist of university level equivalent study only, comprising a mixture of undergraduate (Bachelor) and graduate (Masters and/or Doctoral) studies  

18. On 26 August 2016, the applicant lodged the following with the Department:

    ·     Work safe connect – Statement of Attainment – Standard 11 Generic Call Induction Certificate dated 3 February 2017

    ·     Certificate of Attendance - Glencore Generic Induction Certificate dated 7 February 2017

    ·     A letter from Palmcroft Primary School – confirming completion of primary school education from 18/01/1994  -  07/12/2001 (Grade 7)

    ·     A letter from Earlington Secondary School – confirming completion of Secondary School education from 2002 (Grade 8) – 2004 (grade 10)

    ·     A copy from Metec Telalising Technology P/L Portal  -  outlining multiple work-related online training that the applicant had undertaken and the completion dates

19. In their decision, the delegate noted the visa application form lodged by the applicant asked “is the primary applicant seeking an exemption based on age, skill and or language requirements?”. The applicant was recorded as answering “no”.  

20. The delegate then said that based on the information available to them, including the documents and information the applicant lodged, they were not satisfied the criteria for the grant of the Subclass 186 visa had been satisfied by the applicant. The delegate referred to the aforementioned IELTS test dated 7 February 2015 and the scores obtained therein. However, these scores did not satisfy those established for the purposes of r.1.15C(1)(c). Furthermore, the applicant (a citizen of South Africa), did not hold a passport of a type specified by the Minister in an instrument for the purposes of r.1.15(2). As the applicant had not achieved the required English language proficiency test score, in a test conducted in three years immediately before the day on which the application was made, and as the applicant did not hold a specified passport, he did not satisfy cl.186.222(a).

21. Next, the delegate considered the applicant’s evidence which sought to demonstrate they had completed at least five years of full-time study in a secondary and/or higher education institution, were all tuition was delivered in the English language. This evidence included:

    ·     Work safe connect – Statement of Attainment – Standard 11 Generic Call Induction Certificate dated 3 February 2017

    ·     Certificate of Attendance - Glencore Generic Induction Certificate dated 7 February 2017

    ·     A copy from Metec Telalising Technology P/L Portal  -  outlining multiple work-related online training that the applicant had undertaken and the completion dates

22. However, the delegate said they were unable to consider the above-mentioned documents as they related to on-the-job training course which could not be accepted. The delegate then referred to the following:

    ·     A letter from Palmcroft Primary School – confirming completion of primary school education from 18/01/1994  -  07/12/2001 (Grade 7)

    ·     A letter from Earlington Secondary School – confirming completion of Secondary School education from 2002 (Grade 8) – 2004 (grade 10) (3 years)

23. The delegate then said they were unable to consider evidence relating to full-time study undertaken at a primary school level. Regarding the attendance at Earlington Secondary School, the delegate accepted the applicant had attended for a total of three years and that instructions had been delivered in English.

24. The delegate then noted Form 80, where the applicant stated they had undertaken tertiary education at Metal & Engineering, Olifandsfontein Training Centre - in the period January 2006 to January 2009. This was when the applicant had studied the course of Turner (including Maching) (sic), and that he had obtained a Certificate (cert no: 12/28/17935).

25. The delegate also referred to an email dated 28 August 2018 and issued by the applicant which stated (in part):

    I did complete eight years of primary education and three years of secondary education, all tuition was conducted in English. Tertiary education was conducted for three years and all tuition was conducted in English.

26. After considering the evidence, the delegate noted the applicant had not provided any corroborating documents to support the above claims relating to his tertiary education, which he claimed to have undertaken for a three-year period. Therefore, in the absence of verifiable documents, the delegate did not consider this information towards whether the applicant met the English language requirements.

27. The delegate then concluded that the applicant had not sought an exemption based on language requirement, nor had he provided sufficient evidence to demonstrate that he had completed at least five years full-time study in a secondary and/or higher education institution were all the tuition was delivered in English, and the applicant was not of a class of persons that are exempt from the English-language criteria. Therefore, the applicant did not satisfy cl.186.222(b).

28. As the applicant did not satisfy cl.186.222(a) or (b), the applicant did not meet cl.186.222.

29. Next, the delegate considered cl.186.311 - member of the family unit. However, as none of the applicants satisfied the primary criteria for the grant of the visa, none were able to satisfy cl.186.311. The delegate then refused to grant the applicants a Subclass 186 visa.

30. In submissions to the Tribunal, the following was lodged:  

    ·     Three letters dated 5 August 2019 from Metec Engineering Services P/L claiming inter alia the applicant had work for five and half years as a Leading Hand and was a qualified Fitter and Turner, First Class Machinist. It was also claimed the applicant speaks English fluently.

    ·     An undated letter from Thekwini College claiming the applicant was a student from January 2006 to November 2008; and he completed technical and full-time studies conducted in English language

    ·     a letter dated 5 August 2009 from St Joseph’s Catholic school claiming the applicant’s children attended that school and were first enrolled in 2016

    ·     Evidence of primary education at Palmcroft Primary School  

    ·     the applicants South African passport

31. By email of 6 August 2019,[1] the applicant lodged evidence purporting to demonstrate that he had completed at least five years full-time study secondary and/or higher education institution where all tuition was delivered in English. The applicant also said that he had undertaken an IELTS test on 7 February 2015 – where he had achieved 6.5 for listening, 5.5 to reading, 6.5 for writing and 8.04 speaking (which he said were acceptable for applications processed before July 2017). He then said he felt it was unfair that his application was refused based on his results being ‘0.5 below what was required [for Reading] as [he had] completed five years of full-time study in English as well.’ The documents lodged included:

    ·     Thekwini College (SA) letter claiming the applicant had attended their College between January 2006 and November 2008 – that “all subjects were ‘thaught’ (sic) in the English language, as this is the medium used at this institution”.

    ·     Earlington Secondary School (SA) letter claiming the applicant attended the school from 2002 (grade 8) to 2004 (grade 10).

    ·     Palmcroft Public School (SA) letter dated 20 August 2018, claiming the applicant had attended between 18 January 1994 and 7 December 2001 – and that “he was taught all subjects through the medium of English. First language was English”.

    ·     Metec Engineering Services P/L (Aust) letter dated 5 August 2019 – being a letter of recommendation

    ·     Metec Engineering Services P/L (Aust) letter dated 5 August 2019 – being a second letter of recommendation

    ·     Metec Engineering Services P/L (Aust) letter dated 5 August 2019 – being a third letter of recommendation

    ·     St Josephs Catholic School (Aust) letter dated 5 August 2019, referring to the education of the applicant’s school-aged children

    ·     South African passport face-page photo for the applicant

    [1] Tribunal – from folio 61.

32. At hearing, the applicant’s spoken English language skills were clearly highly competent. The country information considered by the Tribunal also indicated that Durban (around where the applicant attended secondary and tertiary education), had almost half of all inhabitants speaking English as a first language (49.8 %[2]). Further, and as discussed below, he also claimed to have studied full time for six years at the secondary and tertiary level, where all instruction was given in the English language. When then asked why he had only achieved ‘5.5’ for Reading in his abovementioned IELTS test, he said he was nervous at the time of the IELTS test, given his family’s future depended on his achieving the necessary result. The Tribunal accepts this to be plausible, but the applicant none-the-less did not achieve the necessary score in the IELTS test.

    [2] ‘Durban’, Wikipedia, accessed 29 October 2019.

33. Next, at hearing the applicant did not dispute when the Tribunal put to him he did not claim to meet any criteria, other than having studied for (more than) five years full time, where all instruction was given in the English language. That being said, as did the delegate, the Tribunal accepts the applicant attended three years full time at high school (Earlington Secondary School (SA)), where the language of instruction was in English.

1. Regarding the claimed three years full time study at Thekwini College (SA), where the language of instruction was English, the applicant said the nature of the course was that students attended for classroom studies for five days per week (8.00am to 2.00pm), for about ten weeks per term. Further, that there were four terms per year (ie approximately 40 weeks study per year). In the afternoon or on holidays, students may then work but this was not part of the course. The Tribunal was aware of this explanation of the course work, given it had heard similar explanations for course work from other students from South Africa. Though I have not been able to independently corroborate this claim, I propose to give the applicant the benefit of the doubt and accept the claim is accurate. This means that I accept the nature of the (full time) vocational course the applicant had undertaken (at Thewkini College), was not a course whose requirements included a mixture of classroom tuition and on-the-job training. The Tribunal also accepts the medium of instruction was English.

2. The above finding was also based on the following. The Tribunal had attempted (by the issuance of three emails to Thekwini College – issued on 08/08/2019, 23/08/2019, 30/08/2019), to corroborate the claim the applicant had completed his full time technical studies, after three years, where the language of instruction was English, at the College (January 2006-November 2008). However, no response had been received at the day of the second scheduled hearing (being 29 October 2019). The applicant (and his wife) explained that they also had troubles getting documentary evidence, and had only been successful when a relative who continued to reside near the Thewkini College had attended the College premises to retrieve same. They also advised the Tribunal that notwithstanding the invitation on the undated Thewkini College letter to be prepared to ‘assist you further’, that they were told that emailed requests of this nature to the College’s publicly listed email address (as identified on the College webpage), largely went without a response.

3. The applicants also referred to the civil disturbances in South Africa (and Durban) impeding the normal running of many institutions; and the evidence seen by the Tribunal does corroborate this claim.[3]

   [3] See South Africa is burning: femicide, xenophobia and protests, MAIL & GUARDIAN, 4 September 2019, accessed 29 October 2019; 9 [Durban University Technology] students arrested after trying to set guard alighyt 0 police, NEWS24, 18/09/2019, accessed 29 October 2019; UKZN suspends lectures as violent protests dominate Durban campuses, NEWS24, 04/02/2019, accessed 29 October 2019.

4. Next, at hearing the applicant’s witnesses, and in particular his current employer, praised the applicant’s English language capacity, and explained that his competence in the written and spoken word was essential to the applicant’s position. It was also advised the local Apprentice of the Year in Townsville, was in training under the applicant’s guidance.

5. By s.359A letter dated 30 October 2019 (issued after the second hearing), the Tribunal advised the applicant that subject to their comment, the following would be the reason, or part of the reason, for affirming the decision under review. The information related to the Tribunals having been unable to obtain a response from the Thewkini College. At hearing, the applicant wife said she may be able to assist by providing an email address, for a College lecturer (not a private email address).

6. In their response the applicant also said they had resided in Australia for 9 ½ years[4]; that the applicant’s child had sat a NAPLAN test ‘this year’ and achieved scores above the national average; and they also set out history of the applicant’s College in South Africa.

   [4] Tribunal – folio 118.

7. That being said, given the claimed competence of the applicant in his work in Australia (which related to the training he received in South Africa); given the unrest in and around the area of his former residence in South Africa, and the impact this would have on accessing information from his former College, and given the nature of the applicant’s course work in South Africa appears to be very similar to other evidence the Tribunal has taken from South African students, the Tribunal proposes to give the applicant the benefit of the doubt.

8. Therefore, the Tribunal will accept the applicant has undertaken at least five years full time study at the secondary and/or higher education, with all tuition in English.

9. Therefore, cl.186.222(b) is met.

10. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa; including that criteria relating to members of the family unit.

    DECISION

11. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.222(b) of Schedule 2 to the Regulations

    Mr S Norman 
    Member