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 her application and was represented in relation to the review by lawyer, Thi Phuong Chi Trinh. I also heard evidence from her employer and sponsor, Mr Allen Vong (Mr Vong), managing director of Little Miss Saigon Pty Ltd. The hearing was conducted with the assistance of an interpreter if the Vietnamese and English languages.
There is no dispute that Ms Le does not meet the English language proficiency requirements for the visa. She can only meet the requirements of the visa if I am satisfied that ‘exceptional circumstances’ apply. I must be satisfied about this at the time of my decision. As such, the issue at the heart of this case, and the previous reviews, is whether I am satisfied that there are ‘exceptional circumstances’, such that Ms Le does not need to meet the English language proficiency requirements for the visa.
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.
Ms Le was nominated to fill the position of a Cook at Little Miss Saigon Pty Ltd, where she had worked since 2009. According to submissions filed in the proceedings before the MRT, Ms Le had worked in Vietnam as a Cook from 1994 to 2007 with multiple employers before being employed as a Cook with Rice Paper Restaurant under a Subclass 457 visa from 2007 to 2009. The restaurant was located in Canberra. It closed in April 2009 and Ms Le found a new sponsor, Little Miss Saigon Pty Ltd. It was submitted that the new sponsor had been seeking to fill the nominated positions since January 2008, advertising in the Canberra Times for a three-week period in June 2009. It was further submitted that exceptional circumstances applied because the nominating business would suffer significant financial hardship if it lost Ms Le as a Cook. The occupation of Cook had been on the list of occupations in demand in the Australian Capital Territory for several years when the nominated business recruited Ms Le and the position requires “a combination of particular skills, attributes and experience for the target market of the business”. Vocational English is not an essential requirement for the position and Ms Le had sufficient knowledge and skills in English to understand and comply with work, health and safety rules and regulations. She had completed a Certificate I in spoken and written English at the Canberra Institute of Technology and the convener of the course confirmed she had achieved a specific a basic level of proficiency in English.
In rejecting Ms Le’s application and affirming the decision under review, the previous Tribunal stated that it was concerned about Ms Le’s English skills and whether they were sufficient for her to fully understand work, health and safety requirements, to manage other issues in the workplace and to train others as Ms Le had claimed. The Tribunal was also concerned that there was little evidence of attempts to recruit other applicants and it did not accept that the difficulties in recruitment would be so unusual or burdensome as to warrant a finding of exceptional circumstances. The Tribunal was not satisfied that Ms Le was essential for the success and growth of the business. It was further stated that there was “no evidence from the nominating employer as to how the business has been maintained or grown since Ms Le was employed” and that there was “no evidence in support of the claim the particular skills are needed to maintain or grow the target market for the business”. The Tribunal did not accept that the position was so unique that the employer would be unable to find a suitably qualified person to fill the position who had vocational English and, having regard to all of the circumstances, stated that it was not satisfied that exceptional circumstances applied.[2]
[2] Matter number 1210186 at [20]-[25].
This decision was appealed. The Federal Court of Australia found error by the Tribunal in failing to consider submissions made by Mr Vong, on behalf of the nominating employer, regarding Ms Le’s employment as ‘being relevant to its financial viability and its having remained in business’.[3] The Court found that the submissions made by Mr Vong about these matters was evidence and provided material in respect of which it was open to the Tribunal to either accept or reject, not to ignore by characterising it as being no evidence.[4]
[3] Refer Le v Minister for Immigration and Border Protection [2016] FCA 1455 at [35].
[4] Ibid at [37].
The matter was reconsidered by a member of this Tribunal following hearings in March and April 2017.
The Tribunal previously constituted raised concerns about whether Mr Vong’s spouse, Vanessa, worked at the restaurant and whether it was she, rather than Ms Le, who undertook the cooking at the restaurant. The basis for these concerns was information on the restaurant website suggesting that Vanessa was in fact the Cook and had a special “homegrown recipe” for the preparation of Pho. Pho is a popular Vietnamese soup dish.
Ms Le and Mr Vong gave evidence about this. Ms Le said that she was the full-time Cook at the restaurant and that Vanessa was not involved in the cooking but occasionally assisted when the restaurant was busy and worked as a receptionist. She was also responsible for marketing and the recruitment of employees. According to Ms Le, the reference on the website related to a recipe first developed by Vanessa but since that time Ms Le had developed a new Pho recipe that was popular. She was the person responsible for the menus and the cooking, not Vanessa. Mr Vong gave similar evidence to Ms Le. He stated that his wife Vanessa did not work as a Cook at the restaurant and the website was designed for marketing purposes. When the restaurant first opened, Vanessa’s recipe for Pho was used however when Ms Le joined the restaurant, she changed the recipe, and this helped to increase the customer base for the restaurant.
The previous Tribunal was not satisfied that exceptional circumstances applied. Firstly, the Tribunal noted had regard to the Australian Capital Territory occupation list dated 10 September 2016, which noted that the occupation of Cook was a closed occupation because the demand for this occupation had been met. Secondly, the Tribunal noted that it had significant concerns about the evidence of Mr Vong and Ms Le and found that their evidence could not be relied on. Notably, the Tribunal was not satisfied that the applicant was the Cook at the restaurant and did not accept her or Mr Vong’s evidence about this. The Tribunal accepted that Ms Le worked in the kitchen as a ‘valued employee” but did not accept that she was employed as a Cook. The Tribunal was therefore not satisfied that exceptional circumstances applied.
Ms Le appealed and the Federal Circuit and Family Court of Australia quashed the decision of the previous Tribunal, finding that the Tribunal’s reasoning process was flawed.[5] In finding that the restaurant’s website, which stated that Vanessa was the Cook, led to the conclusion that Ms Le could not have been the Cook and was not a credible witness, did not logically follow. For instance, the Tribunal failed to consider the possibility that there could be more than one Cook, nor did the Tribunal appear to consider the possibility that the claim made on the restaurant website was in fact puffery. The Court also noted that it was ‘somewhat incongruous’ that it had been accepted in all previous proceedings that Ms Le was employed as a Cook. The Court found that, but for this error, there may have been a different outcome and the matter was remitted for reconsideration.
[5] Le & ors v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2169 at [25].
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.
Prior to the proceedings before the Tribunal in 2017, Ms Le provided evidence of petitions apparently signed by individuals said to be ‘friends, family and neighbours’ of Ms Le who, it is said, ‘often’ travelled to Ms Le’s restaurant because of the ‘delicious dishes’ she cooked. Mr Vong and Ms Le confirmed that these petitions were arranged prior to the previous hearing. There are approximately 200 signatures on the petitions. It is not possible to verify the contents of the petition, or the veracity of the signatures and statements said to have been made in support of Ms Le. However, I have no reason to believe that the petition is a sham and, as such, the existence of petition lends weight to Mr Vong’s evidence about the importance of Ms Le to the business.
I found Ms Le and Mr Vong to be credible witnesses and I accept their evidence. My findings about their evidence, insofar as those findings are relevant to the determinative issue in this case, are set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether ‘exceptional circumstances’ apply, notwithstanding that Ms Le does not have vocational English.
There is no definition of ‘exceptional circumstances’ in the Act or Regulations, although at the time this visa was in force, the Minister of Immigration and Citizenship issued guidelines about the matters that may be considered in deciding whether exceptional circumstances exist such that an applicant should not be required to meet vocational English.[6] Those matters were as follows:
·the nature of the work to be performed, and why vocational English is not required to perform all of the duties e.g., a religious worker required to work in the language or dialect of the local community;
·how the applicant might transfer their skills to, or otherwise train, other employees regardless of whether the current staff are from the same, or similar, cultural background as this may change over time;
·the applicant's ability to understand and comply with WHS requirements, deal with work emergencies, call for emergency assistance, and communicate with emergency workers when they are alone;
·the applicant's ability to understand and deal with issues relating to their employment and workplace rights, such as what to do about workplace bullying and harassment;
·whether the employer has attempted to recruit a suitably qualified person with vocational English;
·the applicant has worked in the nominated position whilst on a Subclass 457 visa for at least 12 months, and has made a consistent effort to improve their English through a course provider.
[6] Procedures Advice Manual (PAM3): Sch 2 Visa 856 – Employer Nomination Scheme – Age & English Competency at [17.5] (compilation 30/60/2013).
As observed by Judge Emmett in Niram v Minister for Immigration Multicultural Affairs & Citizenship [2013] FCCA 590, these guidelines are not binding on the Tribunal, noting that it is well established policy is only a guide to the application of legislation and does not have legally binding status.[7]
[7] Refer at [103] and [104] citing Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 pp590-1.

The phrase ‘exceptional circumstances’ should be given its ordinary non-technical meaning, in the sense that exceptional circumstances are those circumstances which are unusual, atypical, or out of the ordinary.[8]
[8] An v Minister for Immigration & Citizenship [2007] FCAFC 97 per Lindgren J at [7] and Emmett J at [82].
The concept of ‘exceptional circumstances’ was considered by the Federal Court of Australia in Hatcher v Cohn, in which Kiefel J stated:
“Exceptional” circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances…[9]
[9] [2004] FCA 1548 at [49].
When looking at the type of circumstances which may be relevant for the purpose of assessing whether ‘exceptional circumstances’ exist, consideration is not limited to the particular circumstances of the applicant but include broader circumstances, such as any impact on the nominating business, would be a relevant consideration (see Jia v Minister for Immigration & Citizenship).[10]
[10] [2011] FMCA 422 at [34].
It is contended by the representative that Ms Le plays a critical role in the nominator’s business. There is evidence that if Ms Le is unable to continue, two of the restaurants may have to close. Ms Le’s level of English has not been a limitation in performing the role. It is therefore submitted that exceptional circumstances apply and the fact that Ms Le does not have vocational English should not preclude her from meeting the criteria in clause 856.213 of schedule 2 to the Migration Regulations. There is merit in these submissions.
In addition to this, I accept that Ms Le has special skills as a Vietnamese Cook in what is currently a very challenging labour market. According to Ms Le and Mr Vong, Ms Le’s limited English skills have not been an impediment and her ability to communicate with other Vietnamese Cooks and staff in the kitchen has been an advantage.
The fact that Ms Le has been a part of this business for nearly 13 years and, according to Mr Vong, is well known to customers, is an unusual and important matter that should be taken into account in the circumstances of this case. I also give considerable weight to Mr Vong’s evidence about Ms Le’s role in the business and the importance of her continuing in this role. I accept that Ms Le’s need to have vocational English has not impeded her performance in the role. I also accept that the long years of service of Ms Le as a Cook at the various restaurants operated by the nominating business is an unusual matter which makes these circumstances exceptional. The nominating business is significant and has been in operation for a number of years. Ms Le has a unique role in the business and this, of itself, is out of the ordinary.
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 PSM
Deputy President