Le (Migration) - [2022] AATA 2170

Le (Migration) [2022] AATA 2170 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thi Xuan Thao Le
Mr Phu Son Ho
REPRESENTATIVE:  Mrs Thi Phuong Chi Trinh
CASE NUMBER:  2113194
HOME AFFAIRS REFERENCE(S):          CLF2011/176353

MEMBER:Deputy President J.L Redfern PSM
DATE:30 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Residence) (Class BW) visa for reconsideration, with the direction that the applicant satisfies clause 856.213 of schedule 2 to the regulations.

Statement made on 30 June 2022 at 3:41pm
CATCHWORDS
MIGRATION – Employer Nomination Scheme visa (subclass 856) – Cook – English language proficiency – English Competency – Vocational English – Exceptional circumstances – remitted for reconsideration
LEGISLATION
Migration Regulations 1994, regs 1.15B, 2.26A(6), 856.213, 856.213(c), 856.213(c)(i), 856.213(c)(ii)
CASES
An v Minister for Immigration & Citizenship [2007] FCAFC 97
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577
Hatcher v Cohn [2004] FCA 1548
Jia v Minister for Immigration & Citizenship [2011] FMCA 422
Le v Minister for Immigration and Border Protection [2016] FCA 1455
Le & ors v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2169
Niram v Minister for Immigration Multicultural Affairs & Citizenship [2013] FCCA 590
SECONDARY MATERIALS
Procedures Advice Manual (PAM3): Sch 2 Visa 856 – Employer Nomination Scheme – Age & English Competency
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister of Immigration and Citizenship (now Minister of Home Affairs) on 27 June 2012 to refuse to grant the visa applicant a Employer Nomination (Residence) (Class BW) Subclass 856 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant, Ms Thi Xuan Thao Le (Ms Le), applied for the visa on 17 October 2011. Her dependants at that time, being her spouse and son, Mr Phu Son Ho and Mr Minh Trung Ho, were included in the application as secondary applicants. Mr Minh Trung Ho notified the Tribunal that he wished to withdraw his application for review because he has since obtained another visa. Mr Ho’s withdrawal was accepted on 14 June 2022 and as such he is no longer included in this application.
Ms Le applied for review of the decision to the former Tribunal, the Migration Review Tribunal (MRT). The decision was affirmed by the MRT on 4 October 2013 and Ms Le appealed this decision to the Federal Circuit Court of Australia, then to the Federal Court of Australia. The second appeal was successful, and the matter was remitted to this Tribunal for reconsideration in August 2016. The Tribunal again affirmed the decision under review by decision made on 29 June 2017 and Ms Le appealed this decision. The appeal was heard and upheld in August 2021, as a result of which the matter was again remitted for reconsideration.
Ms Le appeared before the Tribunal on 21 June 2022. She gave evidence in support of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le (Migration)

Details

AGLC: Le (Migration) [2022] AATA 2170
Case: [2022] AATA 2170
Decision Date: 30 June 2022

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination Scheme visa (subclass 856) by Ms Le, who was nominated by her employer. The dispute centred on whether Ms Le met the English language proficiency requirements for the visa. The case was heard by Deputy President J.L Redfern PSM of the Tribunal.

The primary legal issue before the Tribunal was whether Ms Le satisfied the criteria under sub-regulation 856.213(c) of the Migration Regulations. Specifically, the Tribunal had to determine if Ms Le possessed "competent English" and a diploma or higher qualification, or alternatively, if "exceptional circumstances" applied to allow her to satisfy the criteria through having "vocational English" despite not meeting the formal definition.

The Tribunal reasoned that while Ms Le did not possess "competent English" or a diploma, nor did she meet the definition of "vocational English" as set out in regulation 1.15B, exceptional circumstances were present. Evidence indicated Ms Le had been employed as a Cook since 2009 and was considered vital to the operation of her employer's business, which operated three restaurants. Her employer, Mr Vong, who was in poor health, stated that Ms Le's departure would necessitate the closure of two restaurants. Ms Le's role involved not only cooking but also overseeing kitchen staff, menu preparation, and ensuring compliance with work health and safety regulations, all of which she managed effectively with her existing English skills. The Tribunal concluded that these factors constituted exceptional circumstances, thereby satisfying sub-regulation 856.213(c).

The Tribunal remitted the matter for reconsideration with a direction that Ms Le satisfies clause 856.213 of Schedule 2 to the Migration Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, I am satisfied that exceptional circumstances apply and I have concluded that the matter should be remitted for reconsideration.BACKGROUND AND LEGISLATIVE FRAMEWORK Ms Le made her application for the Subclass 856 visa after being nominated by her sponsor and employer under the Employer Nomination Scheme. This scheme operated from 2006 to 2012 and was designed to enable Australian employers to recruit skilled overseas workers for permanent positions in Australia where the employer had not been able to fulfil their needs from the Australian workforce or through their own training efforts. Eligibility for these visas have closed, having been replaced effective from 1 July 2012 by a new visa class.[1][1] Subclass 186. The Class BW visa contained two Subclasses: 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). The criteria these visa Subclasses are set out in Part 856 of Schedule 2 to the Regulations. They include clause 856.213 which relevantly provides that the applicant for the visa must be less that 45 years old at the time of the application for the visa, which is not in dispute, and must have “competent English” and a diploma, within the meaning of sub-regulation 2.26A(6), or higher qualification. There is no dispute Ms Le does not have “competent English” and a diploma or higher qualification, as required under sub-regulation 856.213(c)(i) and, as such, she must satisfy the alternative criteria in sub-regulation 856.213(c)(ii), which provides:(ii) in any other case – unless exceptional circumstances apply, the applicant:(A) is less than 45; and(B) has vocational English. Ms Le has basic English language skills but, as already noted, it is accepted by her that she does not have vocational English language skills, either now or at the time of the application. Vocational English is defined in the regulation 1.15B as follows:(1) A person has vocational 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 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 vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation. This case has been remitted for reconstitution by the Tribunal on two occasions and extensive submissions and evidence have previously been provided to this and the former Tribunal. I will not repeat all of the evidence filed but note that much of the factual material before me is not in dispute. A summary of the evidence and submissions raised in the previous proceedings follows.

Evidence

Evidence Before The Court

The matter now comes before me as the newly constituted Tribunal, with essentially the same issues that require determination as those before the previous Tribunals.OUTLINE OF EVIDENCE Ms Le and Mr Vong gave oral evidence at the hearing. They also provided updated statutory declarations (dated16 and 17 June 2022), which were in addition to the statements provided to the Tribunal made on 31 March, 8 June and 19 and 28 April 2017. Ms Le also provided evidence after the hearing to substantiate her claim about her continuing employment as a Cook in the business. Mr Vong says the business operated three restaurants in the Canberra and that Ms Le works in each of the restaurants. She has worked in the business since 2009 and has been critical to its operations. Ms Le not only works as the head Cook but she oversees the staff in the kitchen, which include a number of Vietnamese students. She is responsible for the preparation of the menus and she is, in Mr Vong’s words, ‘vital’ to the business. The turnover of the business was approximately $1.2 million in the last financial year. Based on his knowledge of her work, Mr Vong is of the opinion that Ms Le does not have any difficulty in communicating with staff, and customers, where necessary. Nor has she had any difficulty in following the relevant work health and safety regulations and Ms Le’s limited English skills had never been a ‘handicap’. He said that if Ms Le was no longer able to continue to work in the business, he would have to consider closing two of the restaurants. According to Mr Vong, he is in very poor health, requiring hospitalisation for kidney dialysis three days a week, and he would not be able to continue to operate the business without her. His wife, Vanessa, does not work as a Cook in the business but helps from time to time when the business is short-staffed. She also assists with business accounts but has another role outside the business working as a beautician. Mr Vong gave evidence that it was very difficult to recruit and retain staff for the restaurants and Ms Le has particular skill and expertise in working with the other Cooks, who are often competitive and temperamental. Mr Vong says that Ms Le is ‘invaluable’. Ms Le says that she had been working in the business since 2009. She works on a full-time basis and has worked continuously since this time, apart from when she has taken annual leave. Before the pandemic, Ms Le travelled to Vietnam for about four weeks every year but says that she made the necessary arrangements with staff to ensure that her period of absence was adequately covered. She had undertaken English language courses in the past but had not pursued them because she found that she did not need to have anything more than basic English language skills in the role she performed. Ms Le gave evidence that she has a basic understanding of English, she knew all the appropriate cooking terms and could communicate well with staff. She said that she had no difficulty in understanding and giving instructions in relation to occupational, health and safety issues.

Decision

Reasons for decision

I am therefore satisfied that ‘exceptional circumstances’ apply such that the fact Ms Le did not have, and still does not have, vocational English does not preclude her from meeting the criteria in clause 856.213 of schedule 2 to the Migration Regulations. In other words, I am satisfied that sub-regulation 856.213(c) is established.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies clause 856.213 of schedule 2 to the Migration Regulations. J.L Redfern PSMDeputy President

Ratio Decidendi

Legal Principle Established

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