Da Silva Rodrigues (Migration)

[2022] AATA 3476

Da Silva Rodrigues (Migration) [2022] AATA 3476 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Carlos Fernando Da Silva Rodrigues

CASE NUMBER:  1834231

HOME AFFAIRS REFERENCE(S):          BCC2018/2009741

MEMBER:Alison Mercer

DATE:24 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) subclass 482 visa.

Statement made on 24 August 2022 at 5:47pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Carpenter – English language proficiency – IMMI 18/032 – International English Language Testing System (IELTS) results – minimum score requirement – exemption categories – shortage of skilled tradespeople in Australia – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 351 
Migration Regulations 1994 (Cth), Schedule 2, cl 482.232 

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 9 November 2018 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 May 2018. At that time, Class GK contained one subclass: subclass 482 (Temporary Skill Shortage). The criteria for a subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Carpenter (ANZSCO code 331212).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.232 of Schedule 2 to the Regulations, which requires the applicant to satisfy any language test requirements specified in the relevant instrument (unless the applicant is exempt under the instrument from having to do so). The delegate noted that the applicant had provided an International English Language Testing System (IELTS) result form for a test he undertook on 29 September 2018, but his scores (3.0 for listening, 2.0 for reading, 4.0 for writing and 5.0 for speaking; overall score of 3.5) did not meet the score(s) specified in the relevant instrument.

4. The Tribunal received a review application from the applicant on 21 November 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Benjamin Hakim, as his representative and authorised recipient for correspondence.

5. On 24 May 2019, the Tribunal wrote to the applicant via his agent to request that he provided updated evidence that he met the English proficiency requirements in cl.482.232. On 27 May 2019, the applicant wrote to request an extension of time to do so, which was granted.

6. On 24 June 2019, the applicant and his agent provided legal submissions plus the IELTS results for tests that the applicant undertook on 24 March 2018, 29 September 2018, 30 May 2019, and 11 June 2019. They also provided 2 letters of support for the applicant from Antoinette Guttieres, director of Alt Form Work Pty Ltd (the applicant’s employer) (dated 14 June 2019) and Robert Ferreira of Sydney Reo (dated 16 June 2019) both stating that they had worked with the applicant for some time and his English competency had never been an issue. A similar statutory declaration dated 19 June 2019 from a friend of the applicant, Caroline Nassour, was also provided. Finally, they provided a ‘Test and Tag’ training certificate issued to the applicant on 5 June 2019.

7. The contents of the agent’s submissions were as follows:

   …

   BACKGROUND

   The applicant is a 44-year-old single male born in Portugal. He arrived in Australia in November 2016 as the holder of an e-Visitor visa. He then applied for and was granted a Student visa in March 2017.

   The applicant commenced employment as a Carpenter with ALT Formwork Pty Ltd in August 2017 whilst studying. Impressed by his skills and commitment to work, his employer (ALT Formwork Pty Ltd) moved to nominate him for a TSS visa as a Carpenter in May 2018. This nomination was approved by the Department on 2 July 2018.

   Unfortunately, the applicant’s application for a TSS visa was later refused by the Department on 9 November 2018. The applicant subsequently appealed this decision and lodged an Application for Review to the AAT on 23 November 2018.

   REFUSAL GROUNDS

   According to the Decision Record of the Delegate dated 9 November 2018, the applicant’s application for a TSS visa was refused because he did not satisfy the English language requirement.

   A TSS visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied. In this case, the delegate was not satisfied that clause 482.232 of Schedule 2 of the Migration Regulations was satisfied. This clause provides that:

   Clause 482.232

   (1)       The applicant satisfies any language test requirements specified for the applicant by the Minister in a legislative instrument made for the purposes of this sub clause;

   (2)       If the Minister requires the applicant to demonstrate his or her English language proficiency, the Applicant demonstrates his or her English language proficiency in the manner specified by the Minister.

   Having considered the relevant legislation and all of the evidence before him, the delegate found that the applicant did not meet the requirements of sub-clause 482.232(1), and consequently clause 482.232 was not met.

   RESPONSE TO REFUSAL GROUNDS

   The relevant legislative instrument specifies the following IELTS test scores for the purposes of sub-clause 482.232(1):

   Listening 5.0

   Reading 5.0

   Writing 5.0

   Speaking 5.0

   Overall 5.0

   The applicant has undertaken four (4) IELTS tests since March 2018. The results of which are as follows:

   Test 1 – dated 24/03/2018 (attached)

   Listening 3.0

   Reading 2.0

   Writing 3.5

   Speaking 4.0

   Overall 3.0

   Test 2 – dated 29/09/2018 (attached)

   Listening 3.0

   Reading 2.0

   Writing 4.0

   Speaking 5.0

   Overall 3.5

   Test 3 – dated 30/05/2019 (attached)

   Listening 3.0

   Reading 2.0

   Writing 2.5

   Speaking 4.5

   Overall 3.0

   Test 4 – dated 11/06/2019 (attached)

   Listening 4.0

   Reading 3.0

   Writing 3.5

   Speaking 4.5

   Overall 4.0

   We submit that the applicant’s commitment to proving his ability to satisfy the English language requirement for the purposes of obtaining his TSS visa has been resolute. At no stage throughout his employment with ALT Formwork Pty Ltd (his employer and sponsor) has his ability to speak, read, write and understand English compromised his work or his employer’s reputation. Please refer to attached Letters of Support from his current employer and building contractor, Statutory Declaration rom a family friend, and his Test & Tag Training Statement of Attainment confirming his English language ability. Please note that no student can successfully complete the Test & Tag Training Course without a more than competent level of English.

   We submit that the above/attached IELTS test results simply illustrate the applicant’s inability to deal with the environmental and emotional pressures associated with the tests rather than his actual ability (or inability) to speak, read, write and understand English at the required level specified by the relevant legislative instrument.

   By his own admission, the applicant was extremely nervous and anxious prior to and during each of his IELTS tests. He has been a tradesman all his life. He is not an academic and is not use to the pressures associated with formal tests of this nature. He was also aware of the importance that each of the test results placed on his visa aspirations for both himself and his employer. This was an added pressure, which he was unable to deal with effectively, and which ultimately affected his ability to perform to the best of his capabilities during each test.

   We submit that the above IELTS test scores produced by the applicant are not a true reflection or indication of his actual ability to speak, read, write and understand English. This is evidenced by the attached Letters of Support. As such, we kindly request that the above information be taken into account by the Tribunal when determining the applicant’s ability to speak, read, write and understand English for the purposes of his nominated position and the subject visa. As can be seen from each of the test results provided, his individual test scores varied marginally between each test, with improved scores in each.

   …

   CONCLUSION

   We submit that the applicant’s ability to speak, read, write and understand English is more than suitable for his nominated position and for the purposes of being granted TSS visa.

   We also submit that it would be a travesty to deny the applicant his visa based on the marginal and variable differences in his individual IELTS test scores brought upon by environmental and emotional pressures rather than his actual English language ability in the workplace and in life in general.

   We also submit it would be extremely disappointing for the applicant’s sponsor and employer, ALT Formwork Pty Ltd, who have invested in the applicant and rely heavily on his skills and experience; not to mention the fact they have successfully nominated him for a TSS visa.

   Given the importance of his role in the company, as outlined in the attached Letter of Support (1), we kindly request the Tribunal’s discretion in remitting the decision and replacing it with a favourable outcome for the applicant, and ultimately his employer.

   …

8. On 17 July 2020, the Tribunal received a further letter of support and a new IELTS booking for the applicant for 8 August 2020.

9. On 9 October 2020, the applicant provided an IELTS test result form for a test he undertook on 8 September 2020, in which he obtained scores of 4.5 for listening, 3.5 for reading, 4.5 for writing and 5.0 for speaking, with an overall band score of 4.5. The applicant also provided a letter dated 16 July 2020 from his employer, Antoinette De Sousa of ALT Formwork Pty Ltd, arguing that the applicant had sufficient English language proficiency skills to undertake work for the business. She also noted that as the applicant’s contract of employment specified that he was to be paid $97,240 per year, they understood he was exempt from having to meet the English proficiency requirements. Ms De Sousa also stated that the applicant had undertaken at least 5 years of secondary school study which was nearly all conducted in English, which they believed provided another ground for him being exempt from having to meet the English test score requirements. Attached to the letter were copies of the applicant’s previous English test results, his contract of employment, and a transcript from his secondary school in Portugal, which indicates that 1 subject he undertook was English. It did not indicate whether all other subjects undertaken by him were delivered in English.

10. On 29 October 2021, the Tribunal wrote to the applicant via the agent to invite him to attend a hearing by videoconference on 10 December 2021. The applicant responded to indicate that he would attend.

11. On 25 November 2021, the Tribunal wrote again to advise that due to unforeseen circumstances, the hearing on 10 December 2021 could not proceed and that he would be notified of a new hearing date in due course.

12. On 8 February 2022, the Tribunal wrote to the applicant via his agent to advise that a new hearing had been scheduled for 8 March 2022, to be conducted by videoconference.

13. The applicant responded to indicate that he would attend the hearing, and wished the Tribunal to also take evidence from his employers, Mr Miguel and Mrs Antoinette Desousa.

14. The applicant appeared before the Tribunal on 8 March 2022 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Miguel and Mrs Antoinette Desousa, of ALT Formwork Pty Ltd, the applicant’s employers. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

15. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, particularly since the applicant and his employers were  located in New South Wales and the Presiding Member was located in Victoria. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant, and his witnesses, were given a fair opportunity to give evidence and present arguments.

16. The Tribunal confirmed with the applicant and his employers that he continues to be employed by ALT Formwork Pty Ltd as a carpenter. Mr and Mrs Desousa told the Tribunal that the applicant has a foreman role, which involves (in addition to carpentry) liaising with engineers and architects and reading building plans, for which his English was fine. They stated that they had never had any complaints about the applicant’s communication skills in his professional capacity. They also indicated that, although there had been a slump in work during the most restrictive periods of the COVID19-related lockdowns in New South Wales, work for the company was picking up and they relied heavily on the applicant’s work ethic and 10 years of experience as a Carpenter, particularly as there was (and continued to be) a shortage of skilled tradespeople (including carpenters) in Australia.

17. The applicant confirmed that his day to day English proficiency was fine for his work and personal life in Australia, but that he had struggled to demonstrate this through his formal English testing as he became anxious during the tests. He and his employers noted that his formal results had improved over time, and that he had paid for and undertaken private English language tutoring, on top of a demanding full time job, to achieve this.

18. The Tribunal discussed with the applicant and his employers the requirements of cl.482.232, which essentially required that the applicant demonstrate his English proficiency in a specified way (that is, by a formal English test in which he obtained the required scores set out in the relevant instrument), unless he was exempt from having to do so. The Tribunal discussed with them its preliminary assessment of the exemption categories applicable in this case, noting that it appeared that none of them were applicable. In particular, it noted that the applicant held a Portuguese passport, which was not one of the specified exemption passport nationalities, and he was not being nominated for a diplomatic position within a consulate. The Tribunal clarified with the applicant about what study he had undertaken in English, and he explained that at secondary school in Portugal, the subjects were taught in Portuguese, but he also learnt English as a foreign language as one of his subjects. In Australia, he undertook a 2 year English course, and had also undertaken private English tutoring. He and his employers queried whether the latter could be counted when considering how much education the applicant had undertaken in English. The Tribunal indicated that it did not consider that private tutoring could be counted as the terms of the exemption referred to secondary or higher education, implying the formal education sector. It undertook to doublecheck this, but noted that even if it were able to count some or all of the private tutoring, it appeared that the total amount of study in English undertaken by the applicant would not amount to 5 years, as required.

19. In relation to the remaining exemption categories, the Tribunal noted that although the applicant was earning more than $96,400, the exemption category relating to salary also required that the applicant was nominated by an employer who had an overseas business. Mr and Mrs Desousa confirmed that ALT Formwork Pty Ltd did not have any overseas operations. The Tribunal also noted that there was another exemption if an applicant’s occupation required licensing or registration, and part of the licensing or registration process involved an English language proficiency test equal or higher to an English test required for the purposes of cl.482.232. Mrs Desousa clarified that in NSW, there is no requirement for Carpenters to be licensed or registered.

20. The Tribunal reiterated that, given that it did not appear that the applicant fell within any of the exemption categories, the only way he could meet cl.482.232 was to undertake a specified English test and obtain the required scores. It indicated that it would defer its decision to 22 March 2022 to enable the applicant to consult with his agent and advise the Tribunal whether he would undertake another English test, and provide a test booking date if so.

21. The Tribunal did not hear from the applicant by 22 March 2022. On 25 May 2022, it wrote to the applicant via his agent to advise that, in the absence of any evidence that the applicant was booked to sit another IELTS test, the Tribunal intended to make a decision in the next week.

22. On 27 May 2022, the agent responded as follows:

    Thank you for your below email. It is much appreciated.

    We have been in contact with the Applicant and been advised that his partner recently gave birth to their child following complications in the latter weeks/months of her pregnancy. The Applicant has therefore been pre-occupied and unable to undertake another English test. They also have 2 other children.

    Having said that, now that the birth is over and his partner is safe and well, the Applicant has booked himself in to undertake another English test on 25 June 2022. See attached evidence confirming same. We have also been advised that given it is a paper test, it may take up to 2-weeks for the results to be provided.

    As such, we kindly request that the Presiding Member delay her decision in this matter until the week beginning 11 July 2022, by which point the results of the Applicants English test will have been provided.

23. The Tribunal agreed to defer its decision until 11 July 2022. On that date, the applicant’s agent advised that the applicant’s results had been delayed and were expected in 7 to 14 days. The Tribunal therefore agreed to defer its decision until 22 July 2022.

24. On 21 July 2022, the Tribunal received the following response from the applicant’s agent:

    We appreciate the extension of time and the Presiding Members' understanding and cooperation.

    Attached is the report in question. It arrived sooner than expected.

    Please kindly provide this report to the Presiding Member, noting we request his/her discretion with respect to the Applicants reading score given how important the Applicant is to his employer and ongoing viability of their business. We rely on all previous submissions and testimonies in support of our clients application, and look forward to receiving a favourable decision.

25. The attached IELTS test report form was issued to the applicant on 7 July 2022 and indicates that in a test he undertook on 25 June 2022, he received the following scores: 4.5 for listening, 4.0 for reading, 5.0 for writing and 5.0 for speaking, with an overall band score of 4.5.

26. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    English language proficiency

1. Clause 482.232(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.232(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

2. The relevant instrument for cl 482.232(1) is IMMI 18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

3. The instrument provides:

   exempt applicant means:

   (a) an applicant who is a citizen of, and who holds a valid passport issued by, one of the following countries:

   (i) Canada;

   (ii) New Zealand;

   (iii) the Republic of Ireland;

   (iv) the United Kingdom;

   (v) the United States of America; or

   (b) an applicant who has completed at least 5 years of full-time study in a secondary education institution or higher education institution where the instruction was delivered in English; or

   (c) an applicant who has been nominated by a standard business sponsor in relation to an occupation that will be performed at:

   (i) a diplomatic or consular mission of another country; or

   (ii) an Office of the Authorities of Taiwan located in Australia; or

   (d) an applicant:

   (i) who has been nominated in relation to an occupation that requires the applicant to hold a licence, registration or membership to perform the occupation; and

   (ii) who has been granted that license, registration or membership; and

   (iii) who, for the purposes of the grant of that license, registration or membership, was required to demonstrate a level of English language proficiency that is equivalent to, or better than, the level of English language proficiency that is required to achieve the required test scores for an approved English language test that the applicant would have been required to achieve but for this paragraph; or

   (e) who:

   (i) is employed by a company operating an established business overseas; and

   (ii) is nominated by a standard business sponsor who is that company or an associated entity of that company; and

   (iii) will receive annual earnings of at least AUD96,400.

4. The Tribunal is satisfied that the applicant does not fall within the exemption category in (a) as he is a Portuguese holding a passport issued by that country.

5. As discussed at hearing, the applicant conceded that he has not completed at least 5 years of full-time study in a secondary education institution or higher education institution where the instruction was delivered in English, and therefore he does not fall within the exemption category in (b).

6. The Tribunal is satisfied that (c) does not apply to the applicant as he has not been nominated by a standard business sponsor in relation to an occupation that will be performed at:

   (i) a diplomatic or consular mission of another country; or

   (ii) an Office of the Authorities of Taiwan located in Australia.

7. As clarified at the hearing, the applicant is based in New South Wales and it is not mandatory there for Carpenters to be licensed or registered, or to be members of a particular organisation, and therefore the exemption in (d) does not apply to him.

8. Finally, although the Tribunal is satisfied that the applicant’s earnings are at least $96,400 per year, it was clarified at hearing that the nominating employer, while an approved standard business sponsor, is not a company operating an established business overseas or an associated entity of one. Accordingly, the Tribunal finds that the applicant does not fall within the exemption category in (e).

9. In order to meet cl.482.232, he must therefore demonstrate his English proficiency through one of the specified tests in IMMI 18/032. The applicant has to date submitted the results of 5 IELTS tests, which is one of the tests specified in the instrument.

10. In summary, the required scores set out in IMMI 18/032 for an IELTS test are a score of at least 4.5 for each of the components (reading, writing, listening and speaking) and an overall band score of 5.0, obtained in a single test.

11. The applicant has not obtained the above scores in any of the tests that he has sat to date.

12. While the Tribunal acknowledges that his scores have improved over the course of the 5 IELTS tests, and that he has obtained testimonials from his employer, another work colleague and a family friend that – outside a formal test environment – his English ability has not been a problem, the requirements of cl.482.232(1) can only be met in the way specified in IMMI 18/032. The applicant has not met these, and the Tribunal has no discretion under the Act or Regulations to waive or overlook the requirements of cl.482.232(1).

13. For these reasons, the Tribunal must find that applicant does not meet the requirements of cl 482.232. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

14. The Tribunal acknowledges the concerns raised by the applicant and his employers about the value of the applicant as an employee within their business, particularly the shortage of skilled tradespeople in Australia at present, and the fact that the applicant’s English is proficient for the purposes of his employment and social life. As noted above, the Tribunal has no discretion to take these factors into account to waive the requirement for the applicant to either demonstrate that he has English in the way specified in IMMI 18/032 or that he falls within 1 of the exemption categories in that instrument.

15. The Tribunal notes that, in the event of an unsuccessful Tribunal review, it is open to the applicant to seek Ministerial intervention pursuant to s.351 of the Act. This section confers a personal discretion on the Minister for Immigration to intervene in a case to grant a person a visa if he or she believes there are compelling or unique circumstances to do so. There are guidelines for this process on the Department’s website, which also provides examples of the kinds of cases in which the Minister might consider intervening.

    decision

16. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Alison Mercer
    Member