Kotsi (Migration)

[2018] AATA 3633

Kotsi (Migration) [2018] AATA 3633 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Brigita Kotsi

CASE NUMBER:  1726717

DIBP REFERENCE(S):  BCC2017/1289922

MEMBER:Alison Mercer

DATE:5 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2018 at 4:41pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Horse Trainer – Vocational English requirements not met at the time of application – Australian fiancé –  Eligibility for onshore Partner visa – Ministerial referral inappropriate – Decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 48, 65, 351
Migration Regulations 1994 (Cth), rr 1.15B, 2.12, 5.19, Schedule 2, cl 186.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 and Border Protection on 19 October 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 April 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Horse Trainer. This stream is designed for subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which requires that at the time that the visa application was made, the applicant had vocational English (as defined in r.1.15B) or was an exempt person and not required to demonstrate vocational English.

6. The delegate noted that the categories of exempt persons were set out in written instrument IMMI 15/083, and that class 3 of IMMI 15/083 referred to persons who had completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. The delegate found that the applicant had provided academic transcripts from Saku Gumnaasium and a letter from the Deputy Head of that school stating that the applicant had studied English for 7 years (from 1993 until 2000) at that institution. The delegate noted that the Department sent the applicant a letter dated 27 July 2017 asking her to clarify whether all the subjects she undertook at Saku Gumnaasium were taught in English, as if she had only studied English as a discrete language subject, and all of her other subjects were taught in Estonian, she would not meet the requirements of class 3 of IMMI 15/083. The delegate noted that the applicant responded on 1 September 2017 by providing an International English Language Testing System (IELTS) test result form dated 19 August 2017 as evidence that she had vocational English. However, the delegate noted that this could not be accepted as the test was taken after the applicant lodged her visa application on 6 April 2017, and r.1.15B required that an IELTS test (or any other specified English test) had to have been undertaken in the 3 years immediately preceding the visa application. The delegate therefore found that the applicant was not an exempt person as defined in IMMI 15/083 and had not demonstrated that she had vocational English in the way required by r.1.15B and thus she did not satisfy cl.186.222.

7. The delegate found that the applicant could not meet the criteria for the alternate subclass within Class EN, subclass 187, as she was not the subject of a nomination made under r.5.19(4)(h)(i) or r.5.19(2) and thus did not satisfy cl.187.233.

8. The Tribunal received a review application from the applicant on 31 October 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Graham Scarratt, as her representative and authorised recipient for correspondence.

9. On 21 November 2017, the Tribunal received a submission attaching various documents in support of the application from the applicant’s agent. These included:

   ·curriculum vitae for the applicant;

   ·statutory declaration dated 18 November 2017 by the applicant, in which she indicates that when she lodged her visa application, she thought that the English level she had achieved during her school study in Estonia was sufficient to meet the requirements of the subclass 186 visa in the transitional stream. However, the case officer did not agree with her assessment or the evidence that she provided. Therefore, she undertook an IELTS test and achieved the level required for vocational English. The applicant stated that, unfortunately, demonstrating English proficiency was a time of application requirement and her visa application was refused, even though she had now demonstrated that she had vocational English;

   ·copy of nomination approval issued by the Department on 21 September 2017 to the applicant’s nominating employer, The Trustee for Gold Front Investment Trust for the position of Horse Trainer valid for 6 months (or until withdrawn, whichever was earlier);

   ·letter dated 17 November 2017 from Susan Olive, owner of Gold Front Pty Ltd (trading as Gold Front Thoroughbred Breeding & Racing), in which she states that Gold Front is a thoroughbred breeding and training facility located 80kms north of Perth in Western Australia, and that this is a rural area so it is very difficult to find and retain quality employees. Ms Olive further states that work commences early, with staff needing to be onsite and read to start work at 6am in the summer months.  During breeding season, staff are also required to check on mares and foals numerous times throughout the night and could be on call if a mare goes into labour. This required employees to live locally or prepare to stay onsite, away from their families. Ms Olive states that due to these unique features of the business, she has extreme difficulty finding and retaining staff. Ms Olive further states that the stud staff handle an assortment of foals, weanlings, yearlings, mares, racehorses and stallions on a daily basis. She adds that thoroughbreds are extremely strong animals with unpredictable behaviour.  It was therefore extremely important that the horses were handled the correct way from a very young age so that they learned good behavioural habits, resulting in them being less dangerous as they got older. Due to this, it was vital that staff employed by Gold Front had previous experience working with thoroughbreds, and had the strength and confidence to handle them. Ms Olive stated that such skills were extremely rare and this made the business’ selection pool for employment incredibly small. Ms Olive further stated that the owners of horses at Gold Front were paying up to $80 per day for their horses to be trained there, and if staff called in sick or did not attend, they were sometimes unable to work all the horses that day. This was extremely unprofessional as people paid a lot of money for a service they expected to be performed every day, which made the hiring of reliable staff vital to the business. Ms Olive stated that the applicant was an extremely experience, reliable and knowledgeable horse person who had been a fantastic employee for Gold Front. It was very rare to find someone with all the qualities she possessed;

   ·employment contract between the applicant and Gold Front, dated 22 September 2017;

   ·IELTS test report form issued to the applicant on 31 August 2017, indicating that she obtained an overall band score of 6.0 in a test she undertook on 19 August 2017 (with individual scores of 5.5 for listening, 5.0 for reading, 5.5 for writing and 7.0 for speaking);

   ·copy of biodata page of the applicant’s Estonian passport;

   ·letter of reference for the applicant from Ms Olive, dated 16 November 2017, in which she indicates that the applicant has worked there since 3 February 2014, initially as a stable hand and now as a trainer and track work rider, in which time she had become a major asset to the business. Ms Olive states that the applicant has a work ethic that is second to none, and a diverse assortment of skills. She further states that the applicant works with young race horse and has a calming effect on them. She was a major part of the yearlings going to the Magic Millions sales every year, during which time she spent numerous hours with the young horses to prepare and educate them to a high standard; and

   ·statutory declaration by Ms Olive dated 3 August 2017, in which she states that the applicant had obtained her track rider’s licence and worked closely with Gold Front’s full time horse trainer, who had been a qualified trainer since 2011 and had encouraged and developed the applicant. Ms Olive states that to obtain a track rider’s licence, one must be a competent rider, be interviewed by the Stewards, pass a medical and have a good understanding of the horse industry. As it was a complex industry, involving working with large and unpredictable animals, training was a long process. The applicant was involved in attending race days and trialing days and track work as both a rider and a strapper. At the stud, she was involved in horse care, feeding and the ongoing training schedule of the horses in training at the time. This changes with each horse and with the results for each horse and was a long term process. The applicant also worked under Gold Front’s Stud Manager, who had been involve in horse breeding and stud farms for 26 years and therefore had extensive knowledge of the industry. During the applicant’s time at Gold Front, she had learned the skills of foaling down the brood mares under the tutelage of the Stud Manager and was now able to do this on her own. She was confident in administering medication if required. In addition, she took Gold Front yearlings to the Magic Millions sales. Before this, the yearlings had to have been handled and nurtured for many months with patient and understanding training. When the yearlings reached the sales, they were presented to many potential clients, and the applicant did this under the eye of an experienced and qualified bloodstock agent. He had passed on invaluable knowledge to the applicant. The yearlings were then presented on stage in front of hundreds of people in a televised presentation. The ongoing skills obtained from these events was invaluable. Gold Front also presented its weanlings and yearlings to prospective buyers throughout the year at the stud, and the applicant was invaluable in training and preparing the young horses for such events. The applicant was a big part of the ongoing success and development of Gold Front and the skills and knowledge she had acquired during her employment there to date made her invaluable.

10. On 2 March 2018, the applicant’s agent wrote again to the Tribunal to request that the matter be remitted back to the Department now that she had satisfied the English requirement. Attached to the agent’s email were the following documents:

    ·further statutory declaration from the applicant dated 28 February 2018, in which she outlines her history in Australia since arriving in March 2012, noting that she had always worked and in particular, had worked for Gold Front since 2014. She was subsequently granted a subclass 457 visa on the basis of her nomination by Gold Front as a Horse Trainer. She states that she is a valuable employee there, loves her work and fully anticipates a long career with Gold Front. She fully acknowledged her mistake in relation to her subclass 186 visa as she genuinely believed she met the English proficiency requirement. Unlike her subclass 457 visa application, which was lodged by a migration agent (Mr Scarratt), she lodged the subclass 186 visa by herself and had subsequently become aware that she should have applied for a subclass 187 visa. The applicant added that she understood that she had made a mistake but that it was inadvertent and that she had now supplied evidence that she met the required standard of English proficiency. The applicant further stated that since February 2014, she had been in a committed relationship with an Australian citizen by birth. They became engaged on 29 June 2017 and were looking forward to getting married and starting a family. The applicant stated that unfortunately, her fiancé was diagnosed with [a medical condition] on 11 October 2017 and subsequently underwent [treatment].  He was currently still under treatment. The applicant stated that this had been very distressing for them and their families, and that her fiancé required her continued emotional support. Coupled with the uncertainty of the applicant’s visa status, it had been very challenging period for them;

    ·copy of the biodata page of the applicant’s fiancé’s Australian passport; and

    ·statutory declaration dated 28 February 2018 from the applicant’s fiancé, in which he confirms that they have been in a committed relationship since February 2012, had become engaged on 29 June 2017 and were looking forward to marrying and starting a family. He further confirmed his diagnosis of [a medical condition] on 11 October [2017], and he emphasised the stress caused to him and the applicant and their families.  He also noted that the refusal and uncertainty about the applicant’s visa application had contributed to his stress.

11. On 14 March 2018, the Tribunal wrote to the applicant via her agent to advise her that it had received the request to remit the matter on the papers but considered that it was unable to do so as the criterion in dispute (cl.186.222 – vocational English) had to be met at the time of application (unless the applicant was exempt from this requirement, which the Tribunal noted did not appear to be the case here) and therefore her subsequent English test could not satisfy cl.186.222. The Tribunal indicated it would write shortly to invite the applicant to a hearing. The Tribunal did so on 16 March 2018.

12. On 4 April 2018, the agent advised the Tribunal that he and the applicant would attend the hearing (to be conducted via videoconference) and also wished the Tribunal to take evidence from the applicant’s fiancé and her employer, Ms Olive.

13. On 23 April 2018, the applicant’s agent provided a further submission in which he indicated (in summary):

    ·the applicant had been working as a Horse Trainer for Gold Front for over 4 years, and the business was located in regional Western Australia;

    ·she lodged a subclass 457 visa application, for which she was sponsored and nominated by Gold Front, on 28 February 2014, with the assistance of the agent. She was granted a subclass 457 visa on 11 April 2014, valid for 3 years;

    ·the agent advised the applicant that she would be eligible for transitional arrangements for permanent residence via a subclass 187 (RSMS) visa after 2 years with the same employer The applicant instead chose to lodge her own application for a subclass 186 ENS visa via the transitional pathway;

    ·unfortunately, the English requirements for permanent visas were more stringent than for the subclass 457 visa category and at the time of lodgment of her subclass 186 visa application, the applicant had not undertaken a specified English test to demonstrate that she had vocational English. When requested to do so, she provided her IELTS test, the scores for which met the scores required for vocational English. However, this was not accepted by the delegate as the test was undertaken after the date on which she made her visa application;

    ·the applicant currently held a bridging visa B, pending the outcome of the review application;

    ·the review application was lodged to request that the Tribunal remit the case back to the Department for further processing now that the English requirement was satisfied;

    ·the applicant’s employer argued that the business could not find employees of the applicant’s calibre in regional Western Australia. This was made clear at the time of the subclass 457 visa and nomination, and this had not changed  The applicant’s failure to obtain a visa would adversely affect Gold Front and cause stress to Ms Olive, the applicant and her fiancé; and

    ·while they were aware of the law at the time of lodgment for visa applications, they appealed to the Tribunal to give a favourable outcome.

14. The applicant appeared before the Tribunal on 27 April 2018 by video conference to give evidence and present arguments. The Tribunal also received oral evidence via video conference from the applicant’s fiancé Mr George Thiveos, and the applicant’s employer, Ms Sue Olive. The applicant’s agent attended by video conference and made submissions.

15. The applicant confirmed the contents of her statutory declarations and the submissions made on her behalf by her agent. In addition, she told the Tribunal that she had been under a lot of stress for some time, as she received the news of her visa refusal and her fiancé’s [medical condition] in the same week. [Details of fiance’s medical condition deleted]. She emphasised that she believed that she had a high standard of English, certainly high enough to meet the requirements for a subclass 186 visa, but had not understood that it was a mandatory requirement for her to undertake an English test before applying for the visa, as she had not been required to do so when she applied for, and was granted, her subclass 457 visa. The applicant confirmed that she is very well settled in the Australian community, in the regional area in which her employer is located. She is regarded as a valuable employee, enjoyed her work greatly and was hoping to marry and start a family with her fiancé Mr Thiveos.

16. The applicant’s employer, Ms Sue Olive of Gold Front, confirmed that the applicant had been employed in the business for 4 years. She said that she felt it was ludicrous to lose such a talented and valuable employee over such a technical issue. Ms Olive said that the applicant’s level of English proficiency was great, so much so that the applicant had been entrusted with managing the business’ social media profile. Ms Olive emphasised that if the applicant were unable to continue in the business, they would have lost the 4 years of experience and training that they had invested in her to date. In response to the Tribunal’s query, Ms Olive said that the relatively remote location of the business put off a lot of locals from applying and staying long term in employment there.  In contrast, the applicant was a trusted long-term employee who had demonstrated commitment and talent, and who was trusted to handle the business’ valuable horses. Ms Olive said that they would re-employ the applicant if she took time off to start a family.

1. The Tribunal then took evidence from the applicant’s fiancé, Mr George Thiveos. He confirmed the contents of his statutory declaration and confirmed that he did not yet have a clean bill of health and still [required treatment] regularly. This was likely to be the case for the next few years. Mr Thiveos said that he was self-employed in the scrap metal business and therefore had had to return to work otherwise he would not be paid. In response to the Tribunal’s query about whether he could relocate overseas with the applicant in the event that she had to leave Australia to apply for another visa, Mr Thiveos said that this was not really an option for him as he needed to support himself, and could not do that outside Australia, particularly if he had to go to Estonia (the applicant’s home country) as he did not speak Estonian. Mr Thiveos also said that it would be emotionally distressing for them both to be separated for an indefinite period, given what they had recently been through with his illness. Mr Thiveos said that the applicant’s failure to undertake an English test before applying for the subclass 187 visa was an honest mistake. Neither of them could believe that it had had such serious consequences. He noted that he and the applicant had tried to save money by lodging the applicant’s subclass 186 visa application without using the services of a migration agent. The Department then sent a request for the applicant to supply an IELTS test, which she did. Then the visa was refused on the basis that the Department could not take the one she did into account. This was confusing and highly stressful for them.

2. The Tribunal then discussed the relevant legal issues with the applicant’s agent. He told the Tribunal that while the successor visa program to the subclass 457 visa program required applicants to get scores of at least 6 in all 4 components of an IELTS test, the subclass 457 visa program did not require any English test when the applicant applied for, and was granted, hers. This, combined with the fact that she learnt English at secondary school and was living and working in Australia already, meant that the applicant did not realise that she should have sat a formal English test before making the subclass 186 visa application.

3. The agent acknowledged that the applicant’s circumstances in not realising that this requirement was mandatory, were not unique. He emphasised, however, that the effect on the applicant, her fiancé and her employer were very significant, especially when taken in the context that the applicant had been easily able to demonstrate the required English proficiency via an IELTS test, albeit after her visa application was made. The agent noted that the case raised many factors which appeared to fall within the Ministerial guidelines for intervention pursuant to s.351 of the Act. In response to the Tribunal noting that the Ministerial guidelines exclude cases in which an onshore partner visa application was possible, the applicant’s agent said that Ministerial intervention was one option (and for which they hoped the Tribunal would consider referring the case). He said that the other option was for the applicant to go offshore and either return on a subclass 676 visa and make another visa application onshore, or make another subclass 186 visa offshore. The applicant’s agent noted that an onshore partner visa application would require the waiver of the relevant Schedule 3 requirements.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies cl.186.222.

   English language proficiency

6. 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 a legislative instrument made for the purposes of cl.186.222.

7. 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.  As the applicant’s visa application was made on 6 April 2017, she must demonstrate vocational English (or fall within an exempt class of persons).

8. ‘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 (the Tribunal notes that an Estonian passport, as held by the applicant, is not specified for these purposes).

9. As noted above, having regard to the date of visa application, the required level is vocational English as set out in r.1.15B. The relevant tests, scores and passports for these purposes are specified in legislative instrument 15/005. For the purposes of r.1.15B, an IELTS test is specified in item 5, with the required scores for that test being a score of at least 5 for each of the 4 test components. It is not disputed that the applicant’s IELTS scores from the test she took on 19 August 2017 meet this requirement. However, r.1.15B(bb) requires that the applicant’s IELTS test (or any of the other specified English tests) must have been undertaken in the 3 years immediately before the day on which the subclass 186 or 187 visa application was made. The applicant made her visa application on 6 April 2017, but did not undertake the IELTS test until 19 August 2017. It therefore does not meet r.1.15B(bb) and she cannot meet the r.1.15B definition of vocational English as a whole.

10. The Tribunal notes that IMMI 17/058 repealed the previous instrument specifying the classes of exempt persons (IMMI 15/083) and is expressed to apply to all subclass 186 and 187 visa (Temporary Residence Transition stream) applications made on or after 1 July 2017, but also to all subclass 186 and 187 visa (Temporary Residence Transition stream) applications made before that date which were not finally determined as at 1 July 2017. This includes the application under review. Item 12 of IMMI 17/058 provides that, for the purposes of cl.186.222(b) and cl.187.222(b), the following class of person is specified as exempt:

    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.

11. On the basis of the documentary and oral evidence provided by the applicant, the Tribunal accepts that she learnt English at secondary school in Estonia for 7 years, between 1993 and 2000. However, as noted by the delegate and confirmed by the applicant at hearing, the medium of instruction for all of her tuition in secondary education was not English, but Estonian (aside from her specific English language subject each year). Accordingly, this does not meet the exemption category above, as not all of the tuition was delivered in English.

12. The Tribunal acknowledges that the applicant in fact has a high level of English proficiency, as demonstrated by her IELTS results from August 2017, her schooling in Estonia which included 7 years of English as a foreign language and her work experience in Australia. However, cl.186.222 requires that the English proficiency requirement is satisfied in the way specified in r.1.15B and IMMI 15/005, or that the applicant is exempt in a way set out in IMMI 17/058. The Tribunal finds that she had not demonstrated that she had vocational English at the time she made her visa application on 6 April 2017 and was not exempt from having to do so. The Tribunal has no discretion within the Act or Regulations to waive the requirements of cl.186.222 or to substitute its own assessment of the applicant’s English proficiency.

13. Therefore, the Tribunal must find that cl.186.222 is not met.

14. 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.

15. The circumstances of the applicant’s case, in the Tribunal’s view, raise compassionate and compelling factors, and as discussed with the applicant at the hearing, the Tribunal would consider referring this matter to the Minister for consideration of his power under s.351 of the Act to intervene in this case.  Section 351 of the Act confers a non-compellable personal discretion on the Minister for Immigration to intervene in a case to grant a visa in the event of an unsuccessful review application if he considers it is in the public interest to do so.  The Ministerial intervention guidelines are set out on the Department’s website at They describe the types of unique or exceptional circumstances in which a case might be referred to the Minister, and include strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, exceptional economic, scientific, cultural or other benefit a visa applicant could bring to Australia if permitted to remain, and/or circumstances where the application of relevant legislation leads to unfair or unreasonable results in a visa applicant’s case. 

16. In the Tribunal’s view, the situation of the applicant and her Australian citizen partner Mr Thiveos and her Australian employer, Ms Olive of Gold Front, meets these guidelines, given that the applicant is an experienced Horse Trainer of 4 years standing with Gold Front and is engaged to Mr Thiveos, who [is under ongoing treatment]. Moreover, the Tribunal notes that the applicant did not meet the English proficiency criterion for a subclass 186 visa only because she was unaware that it was a mandatory requirement to have done an English test before making the visa application, that this occurred in the context of her having learnt English for 7 years at school in Estonia and not being required to undertake a formal test for any previous Australian visa, and where she has now obtained the required score for English proficiency.

17. However, in 2016, additional Ministerial guidelines were published identifying cases which were considered to be inappropriate to refer to the Minister. One of the ‘inappropriate to consider’ scenarios is where the visa applicant in question may be able to apply for a Partner visa onshore as prescribed under r.2.12(1) of the Regulations. This regulation prescribes the visa categories referred to in s.48 of the Act, which generally prevents making a further visa application in Australia after having been refused a visa in Australia, unless it is particular prescribed class of visa.

18. As the applicant appears to be eligible to make a Partner visa application of a kind identified in r.2.12(1) (an onshore Partner (Temporary) (Class UK) or Partner Residence (Class BS) visa) despite having been refused a visa, the Tribunal considers it would be inappropriate to refer her case to the Minister for consideration of his discretion to intervene under s.351 of the Act.

19. The Tribunal nevertheless hopes that the applicant’s circumstances, and those of her Australian partner and employer, are looked on compassionately by the Department, and that if there is any reason that the applicant is unable to make a successful Partner visa application onshore, then her case would be referred to the Minister for consideration of his discretion to exercise his power to intervene pursuant to s.351 of the Act.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alison Mercer
    Member