Hashmi (Migration)

Hashmi (Migration) [2022] AATA 1016 (7 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Syed Hassan Ali Hashmi
Mrs Urooj Hassan
Miss Alayna Hashmi
Master Syed Almir Ali Hashmi
REPRESENTATIVE  Mr Zaheer Khan (MARN: 0743622)
CASE NUMBER:  1912690
HOME AFFAIRS REFERENCE(S):          BCC2019/25648
MEMBER:Katie Malyon
DATE:7 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 07 March 2022 at 2:40 pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Retail Buyer – English language proficiency – ‘competent English’ – class of persons specified for exemption – unique or exceptional circumstances – English language skills – employment skills in demand – community engagement – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 187.222
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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 January 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
Criteria for a Subclass 187 visa are set out in Part 187 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 3 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 - Pakistani national Syed Hassan Ali Hashmi - is seeking the visa in the Temporary Residence Transition stream to continue working in Coober Pedy in his nominated position of Retail Buyer ANZSCO 639211.
The delegate refused to grant the visas on the basis Mr Hashmi did not meet cl 187.222 of Schedule 2 to the Regulations because he did not demonstrate that he had, at the time of lodgement of the visa application, ‘competent English’ and no evidence was provided to demonstrate that he was in a class of persons exempt from the need to meet the ‘competent English’ language requirement as set out in the relevant legislative instrument IMMI 18/045.
Hearing
Mr Hashmi and his wife, the second named applicant Mrs Urooj Hassan, appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The hearing was conducted by way of MS Teams video conference. The applicants were represented in relation to the review by their recently appointed registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. It has also considered whether this is an appropriate case to refer to the Minister pursuant to s.351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants applied for Subclass 187 visa in the Temporary Residence Transition stream. The issue in this case therefore is whether the primary visa applicant, Mr Hashmi, meets the criteria in cl.187.222 of Schedule 2 to the Regulations.
English language proficiency
In relation to an applicant seeking to satisfy the primary criteria for a Temporary Residence Transition stream Subclass 187 visa, cl.187.222 of Schedule 2 to the Regulations requires that:
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.
The Tribunal has considered these provisions as they apply in this case.
Issue 1 - Does the primary applicant have ‘competent English’?
The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if either they:
1)undertook a specified language test in the 3 years immediately before the day the visa application was made and achieved a specified score (emphasis added); or,
2)hold a specified passport.
The following test scores are specified in IMMI 15/005 for the purposes of r.1.15C(1) of the Regulations:
a)an IELTS test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening (the 4 Test Components); or
b)an OET test score of at least B in each of the 4 Test Components; or
c)a TOEFL iBT test score with at least the following scores in the 4 Test Components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or
d)a PTE Academic test score of at least 50 in each of the 4 Test Components.
Information in the Department’s file confirms that, in the applicants’ Subclass 187 visa application, Mr Hashmi responded in the negative to the question as to whether he had undertaken an English language test in the 36 months prior to lodgement of the visa application on 29 January 2019. Prior to the hearing, Mr Hashmi provided evidence he had undertaken a PTE Academic English language test on 15 January 2019 test (that is, just 2 weeks before lodgement of the visa application) in which he scored Speaking 40, Reading 39, Writing 52 and Listening 45. He told the Tribunal that he travelled 800 km to Adelaide from Coober Pedy where he has been working for the last 5 years to do the test: it was stressful. The Tribunal observed that the time of application criterion in cl.187.222 of Schedule 2 to the Regulations is clear and unambiguous: as such, it was necessary to provide evidence of having ‘competent English’ at the time of lodgement of the visa application. It added that the Tribunal has no discretion and cannot waive or vary this criterion. Mr Hashmi said he understood the Tribunal’s position in this regard.
Having considered available evidence the Tribunal finds that, at the time the applicants’ then representative lodged their Subclass 187 visa application on 29 January 2019, Mr Hashmi had not undertaken a specified English language test in the 3 years immediately before that date in which he achieved the specified score in accordance with IMMI 15/005.
The relevant passports specified in IMMI 15/005 for the purposes of r.1.15C(2) of the Regulations are 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. Mr Hashmi holds a passport from Pakistan. He confirmed this at the hearing. Pakistan is not one of the 5 countries specified in IMMI 15/005.
In summary, evidence before the Tribunal confirms Mr Hashmi has not, in the 3 years immediately preceding lodgement of the applicants’ Subclass 187 visa application on 29 January 2019, undertaken an English language test specified in IMMI 15/005 which demonstrates he has ‘competent English’ and nor does he hold a specified passport. Accordingly, the Tribunal finds that Mr Hashmi does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations at the time of application.
Therefore, cl.187.222(a) of Schedule 2 to the Regulations is not met.
Issue 2 - Is the primary applicant within a class of specified persons?
As Mr Hashmi’s Subclass 187 visa application was lodged on 29 January 2019, the relevant legislative instrument for the purposes of cl.187.222(b) of Schedule 2 to the Regulations is IMMI 18/045.
Applicants for a Subclass 187 visa in the Temporary Residence Transition stream are included in the class of persons specified for exemption to the English language requirement. Clause 10 of IMMI 18/045 specifies persons who are exempt from the need to provide evidence of having the English language requirement are:
.. persons who, at the date of application for … a Subclass 187 visa, have completed at least five years of full-time study in a secondary or higher education institution where all the tuition was delivered in English.
Mr Hashmi provided the Department and the Tribunal with evidence of having completed a Diploma in Computer and Business Management at Noor College, Karachi in the period January 1999 to December 2001. He also provided evidence of having completed a Diploma of Associate Engineering at the Jinnah Polytechnic Institute, Karachi in 2009. The records confirm the course was undertaken in the evenings. In addition, Mr Hashmi provided evidence of his 2 year Bachelor of Arts from the University of Karachi awarded in 2010. The certification from the University of Karachi confirms that the language of instruction for Mr Hashmi’s degree was English. Mr Hashmi also provided evidence of having completed a Certificate III in Retail at TAFE SA in June 2018. He undertook these studies as the holder of a Subclass 457 visa whilst working full-time in the nominated occupation of Retail Buyer in Coober Pedy.
The Tribunal accepts that Mr Hashmi completed a Bachelor of Arts at the University of Karachi in 2010 where the language of instruction was English. It also accepts that he has completed multiple courses at TAFE SA to obtain his Certificate III in Retail: however, these courses were not undertaken full-time since he was the holder of a Subclass 457 visa during this period. The Tribunal observed during the hearing that evidence provided indicates he has not undertaken at least 5 years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English. Mr Hashmi acknowledged the Tribunal’s comments in this regard.
Based on evidence provided, the Tribunal finds that Mr Hashmi’s secondary or higher education was not full-time for a period of at least 5 years and, therefore, he is not within a class of specified persons exempt from the need to provide evidence of having met the English language requirement at the time of the visa application.
Therefore, the exemption in cl.187.222(b) of Schedule 2 to the Regulations is not met in the circumstances of this case.
Conclusion
As the Tribunal has found that Mr Hashmi does not satisfy either cl.187.222(a) or cl.187.222(b) of Schedule 2 to the Regulations, it therefore finds that cl.187.222 of Schedule 2 to the Regulations is not met.
Mr Hashmi has only sought to satisfy the criteria for a Subclass 187 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.
The applications of the remaining applicants - Mrs Urooj Hassan, Miss Alayna Hashmi and Master Syed Almir Ali Hashmi - are based on their being a member of the family unit of a person who meets the primary criteria. As Mr Hashmi does not meet the primary criteria, the remaining applicants cannot meet criteria for grant of the visa. Accordingly, the Department’s decision to refuse their application must also be affirmed.
Is this an appropriate matter to refer to the Minister?
The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s.351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act (emphasis added).
The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for consideration of use of the powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether being requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances for consideration of exercising the public interest powers under s.351 of the Act.[1] Also indicated are cases where it would be inappropriate to bring a matter to the Minister’s attention. The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The Guidelines also indicate that, in cases referred by the Tribunal under the s.351 of the Act, the Department will provide the Minister with any other relevant information.
[1] >
The circumstances which may be unique or exceptional in this case include, relevantly:
·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia;
·circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added)
The other relevant information for consideration by the Department in relation to potential referral to the Minister in this case includes, relevantly:
·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and an unlawful-citizen (emphasis added).
The Tribunal has considered not only the Minister’s Guidelines referred to above but also cl.16.1 – cl.16.5 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews[2] as to whether this is an appropriate case to refer to the Minister.
[2] >
The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances.
During the hearing, the Tribunal discussed with Mr Hashmi his request that the Tribunal refer the applicants’ case to the Minister. It acknowledged receiving a submission from him prior to the hearing together with details of:
·Mr Hashmi’s completion of a Certificate IV in Community Pharmacy Dispensary with the Pharmacy Guild of Australia on 27 July 2020 and his undertaking a PTE Academic test on 2 October 2020 which demonstrates that he has ‘competent English’. He scored Speaking 54, Reading 49, Writing 52 and Listening 55 with an overall score of 52;
·his wife, the second named applicant Mrs Urooj Hassan, has been favourably assessed as a Pharmacy Technician 311215, an occupation in demand on the South Australian Migration List;[3]
·the South Australian Birth Certificate of Mr Hashmi’s son Syed Almir Ali Hashmi born 15 March 2019 in Port Augusta. His daughter Alayna Hashmi was born there on 24 April 2017;
·a support letter from Mr Hashmi’s employer Hashmi Pharmacy Services Pty Ltd dated 5 December 2021 confirming the business has a pressing genuine need for him to continue to fill the position of Retail Buyer at its Coober Pedy pharmacy, the only pharmacy in Coober Pedy – the next nearest pharmacy is 600 km away; and,
·a letter from the Administrator of the District Council of Coober Pedy dated 13 December 2021, Tim Jackson. Mr Jackson states Mr Hashmi has shown active participation in all business and town meetings. He highly appreciates Mr Hashmi’s efforts, especially during the COVID-19 pandemic as he has organised several vaccination programs for town residents and travellers at the local pharmacy. Mr Jackson observes that Mr Hashmi is ‘one of the most loved and supported personalities of the town’.
[3] >
Mrs Urooj Hassan told the Tribunal at the hearing that there appears to be a fundamental issue with the specified test results in IMMI 15/005 referred to above at para [11] as she is aware the Pearson PTE Academic test score of 46 equates to an IELTS test score of 6.0. This is confirmed by information on Pearson’s website.[4] She added that, if this was recognised by the Department, her husband would have demonstrated that he had ‘competent English’. Whilst acknowledging this publicly available information on Pearson’s website, the Tribunal notes that test results required to demonstrate ‘competent English’ for the purpose of the Regulations are clearly set out in respect of each of the separate 4 tests.
[4] >
The Tribunal invited the applicants to provide further documentation in support of the Tribunal’s consideration as to whether this is an appropriate case for it to refer to the Minister. After the hearing, Mr Hashmi submitted a number of documents addressing the Guidelines issued by the Minister evidencing the circumstances in which the Minister may wish to consider exercising the public interest powers. Documentation included:
·a letter from Dilshan Perera, Business Services Manager of Umoona Tjutagku Health Service Aboriginal Corporation dated 6 January 2022 – the Tribunal accepts that remote Aboriginal communities have more at risk;[5]
[5] letter from Father Paul Crotty of Ss Peter and Paul Catholic Parish in Coober Pedy dated 17 December 2021;
·a letter from Tanya Harris, Regional Coordinator, Australian Red Cross dated 5 December 2021 together with copies of Mr Hashmi’s Certificates of Completion for a course undertaken in relation to Child Protection (10 June 2017), Equal Opportunity and Code of Conduct (10 June 2017) and Working Safely Red Cross (11 June 2017) as well as photographs of various Red Cross meetings attended by Mr Hashmi;
·photographs of Mr Hashmi’s involvement in various community activities including the Coober Pedy Pharmacy vaccination program and the 2021 Coober Pedy Opal Festival;
·Mr Hashmi and the award to Coober Pedy Pharmacy for being the Top Tier Winner amongst 400 pharmacies across Australia;
·Certificates awarded to Mr Hashmi for:
oCOVID-19 Professional Education Program issued by the Government of South Australia dated 18 August 2020;
oCOVID-19 Vaccination Training Program issued by the Australian Government’s Department of Health dated 2 July 2021; and,
·letter dated 21 December 2021 confirming Mr Hashmi’s daughter Alayna Hashmi is attending the Coober Pedy Area (Preschool).
The information outlined above has cumulatively engaged the Tribunal’s consideration of referral of this matter to the Minister.
The Tribunal also notes that Mr Hashmi did not use an interpreter during the hearing and it had no difficulty at all in communicating with him. Further, it observes many of the support letters referred to above attest that Mr Hashmi is highly competent in his use of English, both written and oral. The Tribunal accepts that regional businesses, especially those in remote parts of Australia such as Coober Pedy, experience difficulty in recruiting and retaining highly skilled and award winning Retail Buyers such as Mr Hashmi. It also accepts that Mr Hashmi’s wife has skills, qualifications and experience as a Pharmacy Technician, an occupation on South Australia’s skilled occupations list. Further, the Hashmi family has an evident high level of engagement in the Coober Pedy community. For these cumulative reasons the Tribunal has decided to refer this matter to the Minister. It will provide the Department with copies of the documentation referred to above at paras [33] and [35] together with copies of the most recent English language test results obtained by Mr Hashmi and his wife.

The applicants may wish to provide the Department with further documentation including a copy of Mrs Urooj Hassan’s favourable assessment as a Pharmacy Technician ANZSCO 311215 and evidence of her employment in the position of Pharmacy Technician, such as PAYG Payment Summaries and Notices of Assessment issued by the Australian Taxation Office.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Katie Malyon
Member

[2022] AATA 1016

7 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction