Gwara (Migration)

[2017] AATA 2438

Gwara (Migration) [2017] AATA 2438 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chenjeral Gwara
Mrs Gamuchirai Gwara
Miss Anesu Michelle Gwara
Mr Takudzwa Kizito Gwara

CASE NUMBER:  1714016

DIBP REFERENCE(S):  BCC2017/1160120

MEMBER:Danica Buljan

DATE:16 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2017 at 9:20am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Competent English – Undertaken several IELTS tests – Occupational English Test – Applicant did not pass the language requirements

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 rr 1.15B, 1.15C, 1.15C(1)(a), 1.15C(1)(bb), 1.15C(1)(c), 1.15C(2), 1.15D, 1.15EA, Schedule 2 cls 186.221(b), 186.231(b), 186.231(b), 186.232, 186.232(a), 186.232(b), 186.311

CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 June 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 26 March 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 Agreement stream.

4. In the present case, the first-named applicant (‘the applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Automotive Electrician’ (ANZSCO[1] Code 321111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 26 June 2013

5. The delegate refused to grant the visas because the applicant did not meet clause 186.232 of Schedule 2 to the Regulations, as he had not demonstrated that, at the time of application, he had ‘competent English’ or that he was a person who was exempt from this requirement under the legislation.

6. The applicants lodged an application for review with the Tribunal on 30 June 2017, and a copy of the primary decision was included with the application for review.[2]  The applicants were self-represented in relation to the review.

   [2]     AAT Case file 1714016 (T1), f.9-16

7. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file, BCC2017/1160120 folio numbered 1-118

   [4]     AAT Case file 1714016, folio numbered 1-62

8. Although the applicants appeared before the Tribunal on 16 October 2017 to give evidence and present arguments, only the applicant gave oral evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Direct Entry stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.23 (‘Criteria for Direct Entry stream’). 

11. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

12. The issue in the present case is whether the applicant meets the requirements of clause 186.232 of the Regulations.

    English language proficiency

13. Specifically, for applicants in the Direct Entry stream clause 186.232 provides:

    186.232At 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.

    Paragraph 186.232(a) - Competent English:

14. ‘Competent English’ is defined in regulation 1.15C of the Regulations. A person will have competent English if he or she either:

    ·undertook a specified language test[5]  in the three years immediately preceding the visa application[6] and achieved a specified score[7]; or

    ·holds a specified passport.[8]

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15C, 1.15D and 1.15EA)', 3 December 2014. 

    [5]     Paragraph 1.15C(1)(a) of the Regulations

    [6]     Paragraph 1.15C(1)(bb) of the Regulations

    [7]     Paragraph 1.15C(1)(c) of the Regulations

    [8]     Subregulation 1.15C(2) of the Regulations

15. The applicant stated in his visa application form that he was a citizen of Zimbabwe.[9] He also provided a copy of a valid Zimbabwean passport[10] in support of his application. In addition, at the hearing the applicant gave oral evidence that he did not hold a valid passport issued by any other country.

    [9]     D1, f.102

    [10]    D1, f.64-65

16. Accordingly, the Tribunal is satisfied that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 26 March 2017. Therefore, the Tribunal finds that he did not have ‘competent English’ on this basis as set out in IMMI 15/005[11] for the purposes of subregulation 1.15C(2) of the Regulations.

    [11]    See subclause 5.F of IMMI 15/005

17. Subregulation 1.15C(1) requires the applicant to have undertaken a specified English language test and to have achieved the specified score during the three years prior to the lodgment of his visa application.

18. For this purpose, the applicant stated in his visa application form that he had undertaken an English language test within the last 36 months prior to lodging this application, namely, an International English Language Testing System (‘IELTS’) test on 5 March 2016.[12] He also included a copy of these results with his visa application.[13]

    [12]    D1, f.114

    [13]    D1, f.63

19. At the Tribunal hearing the applicant confirmed that he had undertaken several IELTS tests, but that he had not otherwise undertaken an Occupational English Test (‘OET’), a Test of English as a Foreign Language internet-based Test (‘TOEFLiBT’), a Pearson Test of English Academic (‘PTE Academic’), or a Cambridge English: Advanced Test (‘CAE’). He also submitted to the Tribunal the additional results from the IELTS tests he undertook on 24 June 2017[14] and 9 September 2017.[15]

    [14]    T1, f.60

    [15]    T1, f.77-78

20. In addition, at the Tribunal hearing the applicant confirmed that he had achieved the following test scores in each of the following IELTS tests he had undertaken:

IELTS Test Component	5 March 2016	24 June 2017	9 September 2017
Listening	6.0	6.0	5.5
Reading	4.5	4.5	5.0
Writing	6.0	6.5	6.0
Speaking	7.0	7.5	8.0
Overall Band Score	6.0	6.0	6.0

1. However, subclause 5.E(i) of IMMI 15/005 specifies that an applicant must have achieved a score of at least 6.0 in each of the four test components of listening, reading, writing and speaking in order to have ‘competent English’ for the purposes of paragraphs 1.15C(1)(a) and (c) of the Regulations. In addition, paragraph 1.15C(1)(bb) provides that the test must have been conducted in the three years immediately before the day on which the application was made. 

2. Accordingly, as the application was made on 26 March 2017, the IELTS tests undertaken by the applicant on 24 June 2017 and 9 September 2017 post-date his visa application and, therefore, they cannot be taken into account for the purposes of paragraph 1.15C(1)(bb) and the definition of ‘competent English’ in regulation 1.15C.

3. The Tribunal finds that the IELTS test the applicant undertook on 5 March 2016 prior to the lodgment of his visa application on 26 March 2017 meets the requirements of paragraph 1.15C(1)(bb) of the Regulations. However, as the applicant achieved a score of 4.5 for the reading component in this IELTS test, he does not meet the requirements of subclause 5.E(i) in IMMI 15/005 for the purposes of paragraphs 1.15C(1)(a) and (c), and thus subregulation 1.15C(1).

4. The applicant has not submitted to the Tribunal any other IELTS test results undertaken in the three years prior to the lodgment of his visa application on 26 March 2017. He also confirmed at the hearing that he had not undertaken any of the other tests specified in clause 5.D of IMMI15/005 for the purposes of subregulation 1.15C(1).

5. As a consequence, given its findings in respect of subregulations 1.15C(1) and (2) above, the Tribunal finds that the applicant did not have ‘competent English’, as defined in regulation 1.15C at the time of application.

6. Therefore, the Tribunal finds that at the time of application the applicant did not have ‘competent English’ and, consequently, it is satisfied that he does not meet the requirements of paragraph 186.232(a)

   Paragraph 186.232(b) – Specified Class of Exempt Persons:

   (a)The Application of Legislative Instrument IMMI 17/058:

7. In the alternative, paragraph 186.232(b) requires that, at the time of application, the applicant was a person in a class of persons specified for this paragraph.

8. However, as noted above, Division 186.2 also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

9. The Tribunal observes that when the applicant lodged his visa application on 26 March 2017, the instrument that specified the class of persons for paragraph 186.232(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[16]

   [16]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015

10. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.232(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[17]

    [17]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’, 23 June 2017

11. Notably, at the time of the Tribunal’s decision there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083, should be applied for the purposes of paragraph 186.232(b) at the time the Tribunal makes its decision. 

12. The Tribunal has also become aware of a departmental media release (dated 11 July 2017[18]) that seeks to clarify changes to employer-sponsored permanent visas, and which states:

    The business community should be assured that changes to the exemption to English language and skills assessment requirements for employer-sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017.

    The Government is removing the exemption for applicants earning over $180,000 per year for English language and skills assessments for the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187).

    In implementing this change, the Department will ensure it only affects applications lodged from 1 July.

    The removal of the exemption is designed to prevent misuse of the program by individuals inflating their income to avoid having to undertake an English test or a skills assessment.

    Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.

    [Tribunal emphasis]

    [18]    T1, f.61 - Accessed 27 October 2017 and 6 November 2017

13. However, the Tribunal observes that at Part 4, subclause 13(1) of IMMI 17/058 specifically states that ‘[t]his instrument applies to applications for Subclass 186 and Subclass 187 visas …made before 1 July 2017 and not finally determined by that date.’

14. In other words, IMMI 17/058 repealed and replaced IMMI 15/083. As a result, it applies to a Subclass 186 visa application, such as the current application, that was made before 1 July 2017 and not determined by that date.[19]

    [19]    See IMMI 17/058, Part 4, clause 13 at page 5

15. In addition, the Courts have held that the departmental policy set out in the ‘Procedures Advice Manual 3’ (‘PAM3’) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. Consequently, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[20]

    [20]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

16. As a consequence, it is well established that whilst the Tribunal may be guided by policy, it is not bound to follow it.[21]

    [21]    See Brennan, J. in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

17. Importantly, and for analogous reasons, the Tribunal considers the contents of a departmental media release cannot be binding upon it, especially in relation to the task of construing a particular legislative provision in the Regulations.

18. As a result, to the extent the departmental media release issued on 11 July 2017 seeks to override the wording of IMMI 17/058, the Tribunal considers that it constitutes an impermissible gloss on the wording and effect of this legislative instrument.

19. Accordingly, given the wording of Division 186.2, clause 186.232 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case.

20. Clause 3 of IMMI 17/058 sets out the authority for this legislative instrument, noting that it is relevantly made under paragraphs 186.221(b), 186.222(b), 186.231(b) and 186.232(b) of Schedule 2 to the Regulations.

21. However, IMMI 17/058 does not specify any class of persons for the purposes of paragraph 186.232(b) of the Regulations. At the hearing, the Tribunal explained this to the applicant, who did not dispute the operation of the legislation, informing the Tribunal that he held a Temporary Work (Skilled) Subclass 457 visa that was valid to 29 July 2020.

22. As a result, on the basis of the contents of IMMI 17/058 and the evidence before it, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 17/058, an instrument in writing for the purposes of paragraph 186.232(b) at the time of application.

    (b)The Application of Legislative Instrument IMMI 15/083:

23. Further, in the event that the correct interpretation of paragraph 186.232(b) requires it to apply IMMI 15/083, the Tribunal observes that IMMI15/083 specifies at clause 2 the following class of persons are exempt for the purposes of paragraph 186.232(b):

    Class 1

    Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Taxation Office’s top individual income tax rate.

24. At the time of the Tribunal’s decision, the current top individual income tax rate set by the Australian Tax Office is $180,001 and over. This was also the rate that applied when the applicant lodged his visa application on 26 March 2017.[22]  

    [22]    T1, f.62 : See - Accessed 6 November 2017

25. The applicant gave oral evidence at the hearing that his annual salary was approximately $60,335 and that it had not reached the top income tax rate of $180,001. As a consequence, the Tribunal is satisfied that the applicant did not come within the class of persons specified in clause 2 of IMMI 15/083 for the purposes of paragraph 186.232(b) at the time of application.

26. Given the above findings, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 15/058, an instrument in writing, for the purposes of paragraph 186.232(b) at the time of application.

    Summation:

27. Consequently, the Tribunal finds that at the time of application the applicant was not a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.232(b).

28. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.232(b).

    CONCLUSION

29. Accordingly, given the above findings in respect of paragraphs 186.232(a) and (b), the Tribunal finds that the applicant does not meet the requirements of clause 186.232. 

30. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

31. To meet clause 186.311 the applicant's spouse and children, the second, third and fourth-named applicants (the 'secondary applicants'), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa.

32. As the applicant does not satisfy the primary criteria for a subclass 186 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visa.

    DECISION

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

    Danica Buljan
    Member