Goncalves De Sa (Migration)

[2024] AATA 3350

Goncalves De Sa (Migration) [2024] AATA 3350 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose Gaspar Goncalves De Sa
Mrs Rosa Da Silva Dantas De Sa

REPRESENTATIVE:  Mrs Monica Sofia Fernandes (MARN: 1463596)

CASE NUMBER:  2317837

HOME AFFAIRS REFERENCE(S):          BCC2023/1347412

MEMBER:Peter Emmerton

DATE:28 August 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 28 August 2024 at 12:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – chef – English language proficiency – competent English – multiple tests over extended period – certificates from TAFE and language college cannot be used to demonstrate level – high proficiency shown at hearing – long residence and current circumstances – possibility of applying for ministerial consideration – member of family unit wife – minimal ties to home countries and daughter’s separate application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15(1), Schedule 2, cl 186.222(a)

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 30 October 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 February 2023. 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 (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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Chef, ANZSCO 351311, Skill level 2.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because were not satisfied the applicant was able to meet the English language competency requirements of 186.222.

6. The applicants appeared before the Tribunal on 28 August 2024 to give evidence and present arguments.

7. The Tribunal found the applicant represented himself in what appeared to be both a candid and truthful manner.

8. The applicant was represented at the hearing via Teams video.

9. The Tribunal hearing was conducted with the assistance of an interpreter fluent in the Portuguese and English languages on standby but unutilised. The applicant demonstrated sophisticated levels of language proficiency.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the requirements of 186.222 are satisfied. That is that at the time of application the applicant had competent English as defined by the relevant Legislative Instrument and Regulations.

12. The Tribunal has read and carefully considered all the evidence presented to the Department and the delegate.

13. The Tribunal has read and carefully considered all the evidence presented to it prior to the hearing as set out below.

    • Applicant statement – undated
    • Representative submission 19 August 2024
    • Prospect Medical Centre documents, Jagannath Mudaliar, 13 August 2024
    • Character references:
    • Raphael Akira Matayoshi Clementino, Restaurant Manager, La Taberna Bar & Kitchen, undated
    • Ana Rita Da Costa Maia Craveiro, Chef- Daily Fix, undated
    • Sofia De Oliveira Piai Messias, Waitress, La Taberna, undated
    • Steve Maras, Group Managing Director & CEO, Maras Group, 14 August 2024
    • Vladimir Damha Hipolito, Chef, 15 August 2024
    • Aitziber Elizondo Arruti, Head Chef, The Food Lab & Coffee, 13 August 2024
    • Jingwang Kim, Chef, Foodland Pasadena, undated
    • Russell Seymour, Chef De Partie, Journey Beyond Rail Expeditions, undated
    • Mark Jaud, Director, unknown & undated
    • Jamie Nicholls, Operations Manager Lady Burra Brew House, undated
    • Matthew Harradine, CDP Great Southern Rail
    • Maria Karanicos, Former Landlord, undated
    • IELTS test results – (14 in total from October 2012 until October 2022)

    English language proficiency

14. 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 LIN 19/216 cl 186.222. 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.

15. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 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.

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

16. The Tribunal has determined with the assistance of Departmental records, that at the time of application, the visa applicant was not in a specified class of exempt applicants according to the relevant legislative instrument.

17. The Tribunal has determined that at the time of application, according to the relevant Departmental records, the visa applicant did not hold a specified Passport according to the relevant legislative instrument exempting them from meeting the required level of competent English.

18. The applicant undertook the most recent of 14 IELTS Academic tests on 8 October 2022, resulting in an overall score of 5.5, (Listening 4.4, Reading 4.5, Speaking 6.5 and Writing 6). This is below the score of 6 required in each of the 4 categories. The Tribunal acknowledges the commitment of the applicant in spending more than $5,000 in pursuit of an acceptable result. This is a further clear indicator of a desire to continue their lives in Australia.

19. As per the instrument: Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019 introduced on 16 November 2019, there are no English language exemptions available for 186 Temporary Residence Transition (TRT) visa applications lodged on or after 16 November 2019. As is the case of this application.

20. Since the documents provided in support of English proficiency do not satisfy 1.15C(1)(a), they do not satisfy 1.15C(1)(c) as set out in IMMI15/005.

21. The Department on 21 September 2023 informed the applicant through a request for further information letter that they do not meet clause 186.222 and provided 28 days to respond. No response was received from the applicant and the delegate subsequently made their decision on 30 October 2023.

22. It is noted that the applicant provided evidence and qualification of academic achievement to the Department.  It is clear from these documents that the applicant is ably qualified for the role he is occupying. These documents however cannot be considered in relation to the assessment of the English criteria. As per regulation 1.15C(1), the certificates from TAFE SA and Salford College cannot be used to demonstrate Competent English.

23. It was observed by the Tribunal the applicant spoke English with a high degree of mastery during the hearing without once utilising the interpreter provided or requiring explanation or clarification.

24. Based on the available information before the Tribunal, the applicant does not meet 1.15C (1). Consequently, they do not meet 186.222(a).

25. Regulation 1.15C(2) states that 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, contained in IMMI15/005 (5)(F) 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. The applicant only holds a Passport issued by Portugal and does not hold a passport from any other country. This was confirmed during the hearing. Therefore, 1.15C(2) is not satisfied.

26. Since neither 1.15C(1) nor 1.15C(2) are satisfied, 1.15C is not satisfied. As 1.15C is not satisfied, the Tribunal finds the applicant did not have competent English at the time of lodging the visa application, and therefore does not satisfy 186.222(a).

27. Subclause 186.222 requires that an applicant must meet competent English; or be a class of person specified in an instrument in writing. The relevant instrument is LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas (LIN 19/216). According to Instrument LIN 19/216 there is no class of specified person for the purpose of 186.222(b). As there is no class of person specified under Instrument LIN 19/216 for the purpose of 186.222(b) the applicant is not a class of persons specified in an Instrument in writing. The applicant therefore does not meet 186.222(b). Since the applicant does not meet 186.222(a), or 186.222(b) the Tribunal finds the applicant does not meet 186.222.

28. The Tribunal has no discretion in this matter.

29. Therefore, cl 186.222 is not met.

30. The Tribunal notes the request for it to seek Ministerial Intervention on behalf of the visa applicants. This request was made both prior to the hearing in writing in the representative’s submission and during the hearing. Whilst it has substantial sympathy for the circumstances facing the applicants who according to the many references and statements have provided substantial contributions to Australia in the culinary fields, the Tribunal believes the legislation is operating as intended. The Tribunal was concerned to learn during the hearing that the original sponsorship for the couple, which occurred early after their arrival, was withdrawn part way through the process. Had this proceeded as planned, it is possible they would not have found themselves in the current predicament as the legislation at the time may have allowed them to remain in Australia.

31. The Tribunal does not believe the case reaches the high bar necessary for the Tribunal to seek Ministerial Intervention on behalf of the applicants. It respectfully appreciates it is within the purview of the Minister to determine the preferred outcome.

32. Having arrived at that assessment, it is further noted that having lived away from their originating country for more almost 14 years at this latter stage of life, their removal from Australia is likely to cause substantial personal, financial, and professional challenges for the applicants. It is further noted that there are minimal familial, or friendship connections left in Portugal and the couple have made their lives in Australia. Their only surviving daughter is currently undertaking a separate immigration process in their adopted country, this follows the earlier death of their other daughter.

33. In addition, it appears that Australia may be derived of a hard-working productive couple who have contributed substantially to the culinary field in South Australia. It is believed they have the capacity to further enrich our society. However, the decision to move to Australia was freely made by the applicants and it was open to them to consider the associated issues accompanying such a move.

34. The Tribunal does however encourage the representative to undertake such a request for Ministerial Intervention on behalf of their clients.

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

    Secondary applicant

36. The Tribunal has determined that the secondary applicant, Mrs Rosa Da Silva Dantas De Sa is not a member of a family unit of a primary applicant who holds a Subclass 186 visa, granted on the basis of having satisfied the primary criteria for a Subclass 186 visa.

37. The secondary applicant therefore does not meet cl.186.311.

    DECISION

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

    Peter Emmerton

    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    .

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.