Kumar (Migration)

[2023] AATA 3043

Kumar (Migration) [2023] AATA 3043 (8 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Kumar
Miss Nigma
Miss Galaxy Saini
Miss Pihu Saini

REPRESENTATIVE:  Ms Archana Gilhotra (MARN: 1909206)

CASE NUMBER:  2103786

HOME AFFAIRS REFERENCE(S):          BCC2020/2697612

MEMBER:De-Anne Kelly

DATE:8 September 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 08 September 2023 at 11:53am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Vineyard Manager – English language proficiency – ‘Competent English’ – LIN 19/216 – exemptions from English language requirements – full time study in a secondary and/or tertiary institution where the instruction was in English – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.222, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 November 2020. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the Subclass 187 visa in the Temporary Residence Transition stream, to work in the nominated position of Vineyard Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.222 of Schedule 2 to the Regulations because the applicant had not satisfied the requirement at the time of application to have competent English or to meet the exemption in the instruments.

6. The applicants appeared before the Tribunal on 23 August 2023 to give evidence and present arguments.

7. The applicants were represented in relation to the review by Ms Archana Gilhotra MARN: 1909206.

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

   Section 359AA of the Act

9. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

10. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. On 24 November 2020, the applicant lodged a Regional Sponsored Migration Scheme visa subclass 187 in the Temporary Residence Transition Stream for the position of Mixed Crop Farmer to be employed in the wine growing district in South Australia.

12. The applicant must satisfy cl 187.222 which provides as below.

    187.222
    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.

13. Competent English is defined in reg 1.15C which provides as follows.

    (1)  A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the person is an applicant for a visa; and

    (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and  

    (c)  the person achieved a score specified in the instrument.   

    (2)  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 subregulation.

14. The instrument in writing at the time was LIN 19/216 “Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019” which provides as follows.

    Subclass 187 visas—Temporary Residence Transition stream

    Exemption from English language requirement

    (2)  For the purposes of paragraph 187.222(b) of Schedule 2 to the Regulations, a class of persons is specified in relation to an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa if, on the day the visa application was made, the persons had completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English.

    English language proficiency

15. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency or be in a class of persons specified in legislative instrument LIN19/216: cl 187.222. 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.

16. In this instance, having regard to the date of 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 which provides as follows.

    D.          for paragraph 1.15C(1)(a), the following language tests:

    i.            an International English Language Test System (IELTS) test; or

    ii.              an Occupational English Test (OET); or

    iii.              a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv.              a Pearson Test of English Academic (PTE Academic    

    E.           for paragraph 1.15C(1)(c), the following test scores:

    i.            an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing and listening; or

    ii.              an OET test score of at least B in each of the four test components of speaking, reading, writing and listening; or

    iii.              a TOEFL iBT test score with at least the following scores in the four test components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

    iv.              a PTE Academic test score of at least 50 in each of the four test components of speaking, reading, writing and listening.

    F.    for subregulation 1.15C(2), 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.

17. In the written online application, the applicant stated that he had not undertaken an English test in the previous 36 months prior to lodging the visa application and in response to the question as to whether he had studied in a secondary and/or tertiary institution where the instruction was in English, he answered “yes” and gave details as “Studied for 7 years from primary to tertiary education”.

18. In the hearing the Tribunal confirmed with the applicant that he had not undertaken a prescribed English test in the 36 months prior to lodging the visa application because of work burdens, the pandemic and the difficulty of obtaining an exam date. It was later found that the applicant had undertaken at least two Pearson PTE English tests on 23 June 2020 and 18 October 2020 however he had failed to achieve the prescribed score of at least 50 in each of the four test components in both of these tests and thus did not satisfy IMMI 15/005. No explanation was provided as to  why the applicant had stated in the application and to the Tribunal that he not undertaken prescribed English tests when he had in fact done so. However, this is not material to the decisions since the applicant did not satisfy IMMI 15/005 and therefore did not have Competent English at the time of application being 24 November 2020.

19. It further confirmed with him that he held an Indian passport and therefore did not satisfy LIN 19/216 since he did not hold a passport from a country listed in the instrument and furthermore did not satisfy reg 1.15(C) since he had not undertaken a prescribed English test in the three years immediately prior to lodging the visa application or if he had done so, had not achieved the prescribed score.

20. The applicant is seeking to rely upon the exemption in LIN19/216 namely

    Exemption from English language requirement

    (2)  For the purposes of paragraph 187.222(b) of Schedule 2 to the Regulations, a class of persons is specified in relation to an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa if, on the day the visa application was made, the persons had completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English.

21. It is noted that the applicant provided the following documents with his original application

    ·Board of School education Haryana – Middle examination held in February 1999 which shows that Hindi was the first and English the second language undertaken for study and marks were respectively awarded for the subjects as 39 and 36, out of 100.

    ·Letter 14 January 2021 “To whome (sic) it may concern” from the Principal, Saini Sr. Sec. School stating the applicant has pursued nine years full-time study and “English was a compulsory as a subject”

    ·Transcript from Government Senior Secondary School 13 January 2021 showing marks awarded for various subjects including 33 for English and 39 for Hindi.

    ·Board of School education Haryana – Matriculation examination showing marks awarded for various subjects including 50 for Hindi and 33 for English.

    ·Letter from Government Senior Secondary School 13 January 2021 stating the applicant had passed his Matriculation Examination.

22. The applicant advised that the legal representative Ms Cyril Gabito of Gabito Lawyers advised him that he was eligible to lodge the visa application if he provided the evidence of his study in English which he provided.

23. None of this study was undertaken in the medium of English but rather English was a subject undertaken among other subjects.  Mr Kumar agreed that it was the case that the subjects were conducted in Hindi. As such the Tribunal advised him that he does not satisfy LIN19/216 since he has not completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English.

24. It is further noted that following his review application the applicant provided a Cambridge English test result undertaken on 11 March 2022 however it was not undertaken in the three years immediately before the date the visa application was made on 24 November 2020. As such the Tribunal can give it little weight and this was advised to Mr Kumar.

25. Mr Kumar advised that he had paid over $30,000 to the legal representative and trusted her to give him the “right guidance” and had he been advised correctly he could have extended his 457 visa which was apparently due to expire on 25 November 2020 and then undertaken some English tuition and sat a prescribed English test.

26. The applicant has provided a further document being the Checklist provided by the Department to the applicant prior to the decision on his visa application and includes the following statement “Evidence of English language ability; no evidence was provided; Note: Applicants who meet Competent English on the basis of an exemption are still required to meet Functional English or pay the secondary VAC ($9,800)”.

27. In the hearing Mr Kumar advised that the then legal representative stated he could pay the second Visa Application Charge VAC of $9,800 as the main applicant and she would then apply for an exemption for him from the English requirement. A receipt provided shows that the applicant made a payment on 14 December 2020 to Gabito Lawyers Associates Pty Ltd of $9,800. He has apparently asked for the money to be re-paid but received excuses and finally his calls were not returned.

28. Under s359AA the Tribunal advised Mr Kumar that the second VAC only applies where a main applicant has satisfied the exemption from Competent English in LIN19/216 and then is unable to provide proof that they have functional English. At that time the Department is satisfied that all the other criteria are met for the grant of the visa and it then issues an invoice for the applicable amount which in this case would have been $9,800. Good practice is for the agent or legal representative to forward this invoice to the applicant as evidence of the need to settle the amount.

29. It further advised him he does not meet the exemption in LIN 19/216 since he has not completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English. He therefore does not appear to meet cl.187.222 since he did not undertake a prescribed English test in the three years immediately before the application was made and did not achieve the prescribed score. Since he does not appear to meet cl. 187.222 this may be a reason to affirm the refusal of the visa applications by Mr Kumar and his secondary applicants.

30. The Tribunal acknowledged the high esteem in which Mr Kumar was held by his employer evidenced by the support letters provided and that he had had good faith in a legal representative who had provided poor advice and appeared to have acted in bad faith by failing to repay monies to him for a second VAC for which he was not eligible. She appears to have requested monies from Mr Kumar in a manner that could almost be said to be fraudulent since any competent agent/legal representative would have known that he did not satisfy the exemption in LIN 19/216 and that any plain reading of the checklist makes it clear that to be eligible to pay the second VAC of $9,800 the applicant must have satisfied the exemption but failed to provide evidence of functional English in an IELTS test or similar.  Moreover, the legal representative did not have an invoice from the Department for a second VAC. A competent agent/legal representative would be aware that the Department is scrupulous in issuing invoices and receipts for any monies paid.

31. Mr Kumar chose to make a written submission within 14 days but then gave an emotional overview of how he had put his faith in the professionalism of the legal representative and that was why he paid the “big money”. He was invited to make a closing statement and said he had suffered a good deal over this matter with sleepless nights and had hoped to start a new journey after the hearing.

32. The current agent said she had spoken with the previous legal representative who had said they were applying for the exemption, but the legal representative had compounded her poor advice by lodging the review application with the Tribunal and had apparently told the applicant that it would an easy case to win. The current agent asked for consideration of Mr Kumar’s good standing with his employer and the fact that none of this was through his actions but through the poor advice of the legal representative.

33. In the submission 28 August 2023 the agent recounts the events leading to the refusal of the 186 visa for Mr Kumar and his secondary applicants all of which is common ground. She then states that the Department failed to consider the facts which she posits are that Mr Kumar studied the English language for nine years of full-time study and it was a compulsory and not elective subject. She acknowledges that there were other subjects studied during this period and those were delivered in the Indian language. She maintains that Mr Kumar having taken and passed English subjects over 9 years and has satisfied the exemption in LIN 19/216. She states that with the two Pearson PTE English tests on 23 June 2020 and 18 October 2020 while failing to show the level of Competent English do show that the applicant had Functional English. She states these “2 instances should not be taken separately. Rather, they should be harmonised to give effect to the true spirit of SC 187.222”.  Moreover, she states that one of Mr Kumar’s children has been given Australian citizenship on 21 December 2021. The agent appeals to the Tribunals sense of justice as the child may be allowed to stay here while the rest of the family are deported as aliens and for these reasons the refusal should be set aside.

34. The Tribunal has considered the exemption in LIN 19/216 which states ‘the persons had completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English.”

35. It is established that the applicant had at the time of application completed at least 5 years of full-time study in a secondary or higher education institution. However, the further criteria that “all tuition was deceived in English” means that all subjects were delivered in English not just the English language subjects. In Mr Kumar’s case the agent acknowledges that the other subjects were delivered in the Indian language. The instrument does not say that the applicant can take only the English language subject delivered in English but must have taken all subjects delivered in English.

36. As such, the Tribunal finds the applicant does not satisfy LIN 19/216 so does not satisfy, at the time of application, cl187.222(b) since he is not a person in a class of persons specified by the Minister in an instrument in writing for this paragraph and he does not satisfy cl 187.222(a) since he did not have competent English at the time of application.

37. The Tribunal has considered the value that the employer places on Mr Kumar, the poor advice he received from the legal representative, his distress at the situation he and his family are facing and the fact that he may have a child who is an Australian citizen however none of these are factors that weigh upon cl 187.222 and as such little weight can be given to them.

1. Therefore, cl 187.222 is not met.

2. The applicant 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.

3. Miss Nigma, Miss Galaxy Saini and Miss Pihu Saini were secondary applicants on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

   187.311
   The applicant:
   (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b) made a combined application with the primary applicant.

4. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicants therefore do not satisfy cl.187.311.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   De-Anne Kelly
   Member