Pandelaki (Migration)

[2022] AATA 1223

Pandelaki (Migration) [2022] AATA 1223 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nofrie Pandelaki

REPRESENTATIVE   Mr Daniel Estrin

CASE NUMBER:  1917442

HOME AFFAIRS REFERENCE(S):          BCC2019/2497767

MEMBER:Katie Malyon

DATE:17 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 17 March 2022 at 9:14 am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Mechanical Engineering Technician – English language proficiency – IMMI 15/005 – ‘competent English’ – class of specified persons – IMMI 18/045 – unique or exceptional circumstances – exceptional economic benefit – skills in high demand – unfair results in a particular case – potentially negligent advice from former migration agent – decision under review affirmed

LEGISLATION
Home Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020
Migration Act 1958 (Cth), ss 65, 351
Migration Amendment (2021 Measures No. 1) Regulations 2021
Migration Amendment (COVID-19 Concessions) Regulations 2020
Migration Amendment (Temporary Graduate Visas) Regulations 2020
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cls 187.222

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 applicant, Indonesian national Mr Nofrie Pandelaki, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Pandelaki applied for the visa on 11 May 2019.  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 (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 (TRT) stream, the Direct Entry stream or the Labour Agreement stream.

4. In the present case, Mr Pandelaki is seeking the visa in the TRT stream to continue working in the nominated occupation of Mechanical Engineering Technician ANZSCO 312512 with his employer Rema Tip Top Asia Pacific Pty Ltd (the Company).  The Company’s nomination was approved by the Department on 14 June 2019.

5. The delegate refused to grant the visa on the basis Mr Pandelaki 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

6. Mr Pandelaki appeared before the Tribunal on 13 December 2021 to give evidence and present arguments.  The Tribunal also received oral evidence Marija Frankovic, HR Business Partner with the Company.  Mr Pandelaki’s wife, Angelia Ticualu, attended the hearing but chose not to give evidence.  Mr Pandelaki was represented in relation to the review by Daniel Estrin of Estrin Saul Lawyers.

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. The Tribunal has also considered if it should refer this matter to the Minister for his personal intervention pursuant to s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue

8. The issue in the present case is whether the applicant meets criteria in cl.187.222 of Schedule 2 to the Regulations.

   English language proficiency

9. In relation to an applicant seeking to satisfy the primary criteria for a Subclass 187 visa in the

   
   

   TRT stream, 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 applicant have ‘competent English’?

10. 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.

11. 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.

12. Prior to the hearing, the representative provided a submission dated 6 December 2021 in which he acknowledged that Mr Pandelaki had undertaken an IELTS language test on 5 January 2019 (that is, 4 months before lodgement of the visa application) in which he scored Listening 4.5, Reading 4.5, Writing 5.0 and Speaking 6.5.  The representative advised Mr Pandelaki had engaged Melanie Douglas of EMD Migration to assist with his application.  Ms Douglas had asked him if he had started the online English practice for the visa.  When Mr Pandelaki enquired as to the score he needed, she advised him that he should not worry as the application could be lodged and he would just need to pay $10,000 after his visa was lodged to cover AMEP English classes.  Ms Douglas proceeded to lodge the visa application and, in response to the question as to whether the applicant has at least functional English, responded in the positive. 

13. The current representative opines that, presumably, the former representative Ms Douglas was referring to the second visa application charge in Item 1114C of Schedule 1 to the Regulations which allowed primary applicants who are assessed as not having functional English but who otherwise satisfied primary criteria for grant of a Subclass 187 visa to pay $9,800. The Tribunal understands that Mr Pandelaki has made a formal complaint to the Office of Migration Agents Registration Authority (OMARA) in relation to Ms Douglas’ failure to appreciate that cl.187.222 of Schedule 2 to the Regulations is a primary criterion. It noted during the hearing that it was unable to comment on any aspects of Mr Pandelaki’s complaint to OMARA.

14. The time of application criterion in cl.187.222 of Schedule 2 to the Regulations is clear and unambiguous: as such, it was necessary for Mr Pandelaki to provide evidence of having ‘competent English’ at the time of lodgement of his visa application. During the hearing, the Tribunal noted that it has no discretion and cannot waive or vary this criterion. Mr Pandelaki and his representative acknowledged the Tribunal’s position in this regard.

15. Having considered available evidence, the Tribunal finds that at the time Mr Pandelaki’s then representative lodged his Subclass 187 visa application on 11 May 2019 he had not undertaken a specified English language test in the 3 years immediately before that date in which he achieved at least 6 in each of the 4 Test Components in accordance with cl.5E(i) of IMMI 15/005.

16. The relevant passports specified in cl.5F of 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 Pandelaki holds a passport from Indonesia. He confirmed this at the hearing. Indonesia is not one of the 5 countries specified in IMMI 15/005.

17. In summary, evidence before the Tribunal confirms Mr Pandelaki has not, in the 3 years immediately preceding lodgement of his Subclass 187 visa application on 11 May 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 Pandelaki does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations at the time of application.

18. Therefore, cl.187.222(a) of Schedule 2 to the Regulations is not met.

    Issue 2 - Is the applicant within a class of specified persons?

19. As Mr Pandelaki’s Subclass 187 visa application was lodged on 11 May 2019, the relevant legislative instrument for the purposes of cl.187.222(b) of Schedule 2 to the Regulations is IMMI 18/045.

20. Applicants for a Subclass 187 visa in the TRT 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.

21. Mr Pandelaki provided the Department with evidence of completing a number of technical courses in Australia in relation to his work.  However, all such courses have been undertaken whilst Mr Pandelaki was the holder of one of his 4 separate Subclass 457 visas held over the past 17 years since his arrival in Australia on 4 February 2005.  The Tribunal observed during the hearing that available evidence 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 Pandelaki acknowledged the Tribunal’s comments in this regard. 

22. Based on available evidence, the Tribunal finds that Mr Pandelaki’s secondary or higher education was not full-time for a period of at least 5 years where the language of instruction was English 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.

23. Therefore, the exemption in cl.187.222(b) of Schedule 2 to the Regulations is not met in the circumstances of this case.

    Conclusion

24. As the Tribunal has found that Mr Pandelaki 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.

25. Mr Pandelaki has only sought to satisfy the criteria for a Subclass 187 visa in the TRT 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 TRT stream have not been met, the decision under review must be affirmed. 

    Is this an appropriate matter to refer to the Minister?

26. 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).

27. 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 power is 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.

28. 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 circumstances which may be unique or exceptional in this case include:

    ·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

    ·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).

    [1] >

    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 as to whether this is an appropriate case to refer to the Minister.[2]

    [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. 

29. Prior to the hearing, the representative made a submission requesting the Tribunal consider referring the matter to the Minister on the basis that Mr Pandelaki is barred under s.48 of the Act from making an application for a Subclass 482 (Temporary Skill Shortage) visa sponsored by the Company. Mr Pandelaki maintains he is in this predicament because of the negligent advice of Ms Douglas. In light of the fact that Mr Pandelaki cannot leave Australia to make a Subclass 482 visa application offshore due to COVID-19 travel restrictions in Western Australia, the representative requested the Tribunal consider referring the matter to the Minister with a recommendation of either granting him a permanent visa or a Visitor visa thereby allowing him to lodge a new Subclass 482 visa application onshore. The representative noted that Mr Pandelaki has been with the Company now for 7 years.

30. The Company is a large multi-national, headquartered in Germany, which delivers material processing and surface protection solutions.  In a signed letter dated 10 December 2021 lodged with the Tribunal prior to the hearing the Company’s HR Business Partner, Ms Frankovic, confirms that if Mr Pandelaki is required to leave Australia to lodge a visa application offshore and he is then stuck overseas with no certainty as to when he may return this will “cripple the Company’s ability to properly service its clients”.  In her letter, Ms Frankovic states that Mr Pandelaki is part of the service division in Western Australia, which services BHP and Fortescue Metals Group.  She opines that the Company is responsible for the niche service of conveyor belt maintenance and repair of multiple mine sites across Australia ensuring resources are transported and exported to international buyers, thereby contributing to stimulation of the Australian economy. 

31. In her oral evidence at the hearing Ms Frankovic told the Tribunal that the niche services provided by the Company have grown dramatically in the last 15 - 20 years such that it has set up a registered training organisation, Work Integrated Learning Australia Pty Ltd RTO 40804[3] to deal with the huge demand from the mining sector which, of course, is fundamental to the Australian economy.  She added that the skill set is still so difficult to come by that the Company has had to resort to using international workforce facilitated by its Labour Agreement negotiated with the Department.  Courses are delivered by Work Integrated Learning Australia in Queensland, New South Wales, South Australia and Western Australia.  The Tribunal requested further information be provided after the hearing to address the Company’s claims about its genuine need to continue to engage Mr Pandelaki. 

    [3] >

    The Tribunal discussed the representative’s request for referral of the matter to the Minister during the hearing.  It noted the representative had provided prior to the hearing not only a copy of the Marriage Certificate issued by Western Australia’s Registry of Births Deaths and Marriages confirming Mr Pandelaki (Technician) and Angelia Ticualu (Lawyer/Business Woman) were married on 20 October 2020 at Kings Park in Perth but also a copy of the Department’s Visa Grant Notice issued to Ms Ticualu in relation to her Resident (Subclass 155) visa granted on 25 August 2016.  The representative told the Tribunal that he had canvassed with Mr Pandelaki the prospect of a Partner visa application being lodged onshore but noted that this presented Schedule 3 difficulties given Mr Pandelaki does not hold a substantive visa due to circumstances arising from the former agent’s negligent advice.  Further, he referred in passing to the not insignificant costs associated with a Partner visa application. 

32. The Tribunal acknowledged the representative’s comments but noted that the Minister’s Guidelines expressly state that it is inappropriate to refer a case to the Minister in circumstances where:

    ·the person may be able to apply for a Partner visa onshore described under regulation 2.12(1) of the Migration Regulations 1994.

    In the circumstances, it invited the representative to provide post hearing submissions as to why the matter should be referred to the Minister where it appeared evident that Mr Pandelaki’s circumstance of being married to an Australian permanent resident is expressly excluded from the Tribunal’s consideration of referring a matter to the Minister.

33. After the hearing, the representative provided an email from the Company dated 8 February 2022 with information in relation to the Certificate III in Polymer Processing that the Company’s RTO has had endorsed as an apprenticeship by the Department of Training and Workforce Development which manages Western Australia’s investment in vocational education and training.  It is a 4 year Conveyor Belt Technician (Level 3) apprenticeship program in Western Australia and Queensland.  The report notes the 15% attrition rate of apprentices is due mainly to apprentices leaving the Company’s employment.  The Company also included a Spreadsheet of the data of applications to the belt splicing and other belt technician roles for the past 2 years.  The information addressed the exceptional economic and other benefits that would result from Mr Pandelaki being permitted to remain in Australia to apply either for a Subclass 482 visa or a Visitor visa to allow him to apply for a Subclass 482 visa.  However, no submission has been received in relation to Mr Pandelaki’s option to apply onshore for a Partner (Temporary) Class UK Subclass 820 (Partner) visa and a Partner (Residence) Class BS Subclass 801 (Partner) visa consistent with r.2.12 of the Regulations.

34. The Tribunal has considered the circumstances of this case.  The factors which cumulatively engage the Tribunal's consideration that this may be an appropriate case to refer to the Minister are as follows:

    ·it is clear that the Company has a strong economic need to continue the ongoing employment of Mr Pandelaki.  As noted above, its nomination for the position of Mechanical Engineering Technician ANZSCO 312512 in respect of Mr Pandelaki confirming his salary of $147,214 per annum plus superannuation was approved on 14 June 2019.  The Tribunal found Ms Frankovic, HR Business Partner with the Company, to be a credible witness whose strong evidence confirmed the exceptional economic benefit to Australia in allowing Mr Pandelaki to remain in Australia on a Subclass 482 visa

    ·the nominated occupation of Mechanical Engineering Technician ANZSCO 312512 is currently recognised by the Western Australian Government by its inclusion in its Skilled Occupation List;[4]

    ·the West Australian border opened on 3 March 2022 and, as such, it would be possible for Mr Pandelaki to travel overseas to lodge a new Subclass 482 visa application with a view to returning to Australia and, following approval of that visa lodging a Subclass 186 or Subclass 187 visa nominated by the Company.  Mr Pandelaki is currently 43 years of age so the age restriction will impact the possibility of lodging such a visa until November 2023; 

    ·pending OMARA’s investigation it may be the case that, as argued by his current representative, Mr Pandelaki and the Company are in the current position only because of the negligent advice Mr Pandelaki received from his former registered migration agent at the time she lodged his Subclass 187 visa application;

    ·based on Departmental records, Mr Pandelaki has lived in Australia since February 2005 (that is, more than 17 years) and, as such, has a strong connection with Australia.  He has undertaken a Certificate IV in Polymer Technology from Illuminate Group in December 2016 after completing multiple leadership and supervisor courses with RTO Solutions in 2014 and Mandurah Safety & Training Services in 2008;

    ·as confirmed by the Marriage Certificate and evidence of Ms Ticualu’s status as a permanent resident lodged with the Tribunal, Mr Pandelaki has married an Indonesian national.  It is evident that Ms Ticualu has a longstanding connection with Australia as she currently holds a Subclass 155 Resident Return visa granted on 26 August 2016: and,

    ·the World Health Organization’s report confirms that, as at 15 March 2022, Indonesia has one of the highest rates of COVID-19 cases in Asia with 5,900,124 cases and 152,437 deaths.[5]

    [4] type="1">

    The Tribunal accepts that the travel restrictions arising from the COVID-19 pandemic have meant that Mr Pandelaki has not been able to leave Western Australia to lodge a substantive Subclass 482 visa application offshore.  Even though the border opened on 3 March 2022, it accepts there may be difficulties in his promptly returning to Australia.

    The Tribunal notes the Commonwealth Government has recognised the inflexibility of the Regulations regarding the Schedule 2 criteria for a range of visas arising from the impact of travel restrictions in response to COVID-19. By way of example, the Government introduced the Migration Amendment (2021 Measures No. 1) Regulations 2021 (the 2021 Amending Measures Regulations) which amend the Regulations effective 27 February 2021. The 2021 Amending Measures Regulations facilitate, inter-alia, onshore grants of Subclasses 101 (Child), 102 (Adoption), 124 (Distinguished Talent), 300 (Prospective Marriage), 309 (Partner (Provisional)) and 444 (Dependent Child) visas. Prior to the introduction of these amendments, it was necessary for the grant of these visas that the applicant be offshore. The Explanatory Statement accompanying the 2021 Amending Measures Regulations confirms the instrument makes amendments, inter-alia, to assist certain visa applicants and holders 'adversely impacted by COVID-19'. In the Tribunal's opinion this recognises that the current COVID-19 travel restrictions are not only circumstances which are not anticipated by the relevant legislation but also that application of the Regulations leads to unfair results in some cases.

    The Tribunal acknowledges that the 2021 Amending Measures Regulations is merely one of a suite of the Commonwealth Government's regulatory changes which recognises the adverse impact on some visa applicants of otherwise inflexible provisions in the Regulations in the context of the circumstances faced by applicants as a result of the COVID-19 pandemic.

    In addition to the 2021 Amending Measures Regulations, the other changes include the Migration (COVID-19 Pandemic Event for Temporary Activity (Subclass 408) visa) LIN 22/046 which expands the kind of work an applicant can be doing, or have an offer to do, to be eligible for grant of the Subclass 408 visa by removing the limitation to work in key sectors – this is particularly relevant given it is dated 11 March 2022 and, as such, recognises the ongoing impact of the COVID-19 pandemic on Australian businesses despite borders opening. Earlier changes to the Regulations include:

    ·Migration Amendment (COVID-19 Concessions) Regulations 2020 which includes amendments to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who are disadvantaged by the consequences of the COVID-19 pandemic;

    ·Home Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020 which provides concessions to certain applicants for Working Holiday visas, restructures and streamlines Distinguished Talent visas and makes amendments consequential to the Migration Amendment (COVID-19 Concessions) Regulations 2020 for skilled visas; and,

    ·Migration Amendment (Temporary Graduate Visas) Regulations 2020 which, inter alia, clarify the operation of the concession inserted by the Migration Amendment (COVID-19 Concessions) Regulations 2020 by allowing applicants for Subclass 485 visas to be outside Australia during the concession period associated with the COVID-19 pandemic.

    It appears to the Tribunal that the circumstances presented by Mr Pandelaki’s case are unique because of the combined impact of s.48 of the Act precluding his lodgement of a valid Subclass 482 visa whilst in Australia as the holder of a valid BVA as well as the fact that, due to travel restrictions arising from COVID-19, he has limited options to leave Australia to validly lodge such an application offshore and then promptly return to Australia to continue working with the Company in what clearly is an important role with the business.

    Given the cost to Mr Pandelaki, and vicariously to the Australian community, by virtue of dealing with any appeal from this decision to the Federal Circuit and Family Court of Australia, it may well be a consideration for the Minister to allow Mr Pandelaki to validly lodge a Subclass 482 visa application whist remaining in Australia subject to his being nominated successfully by the Company.  Alternatively, the Minister may treat Mr Pandelaki’s current Subclass 187 visa application as an application for either a Visitor visa or a Subclass 482 visa and then consider alternative criteria for grant of the visa.  However, consideration of these options would entirely be a matter for the Minister to determine.

    The Tribunal acknowledges the representative’s comments that the Company does not wish to have Mr Pandelaki leave Australia without certainty that he can promptly return given his significant role in the business.  It also accepts the importance of Mr Pandelaki’s role with the Company’s business and, thereby, the Western Australian economy.  After careful consideration, on balance and having regard to available evidence, the Tribunal considers that Mr Pandelaki’s case involves unique or exceptional circumstances for the reasons outlined above.  Accordingly, the Tribunal will refer the matter to the Department for the Minister's consideration and provide the Department with documentation submitted by the representative.  Mr Pandelaki and the Company may wish to lodge further documentation with the Department addressing the circumstances of this case.

    DECISION

    The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Katie Malyon

    Member