Pandey (Migration)

Pandey (Migration) [2019] AATA 4693 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mahesh Chandra Pandey
CASE NUMBER:  1820564
DIBP REFERENCE(S):  BCC2017/1334005
MEMBER:Amanda Mendes Da Costa
DATE:28 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Migration Act 1958.

Statement made on 28 October 2019 at 9:12am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – standard business sponsor stream – English language requirements and tests – failure to achieve specified score in a number of attempts – legislative amendment – no English language requirements when first visa granted – abuse in previous workplace – job skills, experience and references – referred to Department for consideration by Minister – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(eb)(iv) and (v)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 10 April 2017.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visa on 28 June 2018 on the basis that cl.457.223(4) was not met because the delegate was not satisfied that the applicant had demonstrated that he had undertaken an English language test and achieved the score specified by the Minister in the appropriate legislative instrument.
Upon consideration of the Department and its own file, the Tribunal is satisfied that a decision can be made in the matter without the necessity of a hearing.
The applicant was represented in relation to the review by his registered migration agent.
The documentation provided to the Tribunal by the applicant for the purpose of the review included the following:
·Applicant’s statement dated 22 October 2019;
·Copy of certificates and qualification for the applicant;
·Copy of Pearson English test scores;
·Applicant’s curriculum vitae;
·Employment agreement with Taj Agra restaurant dated 7 October 2019;
·Letter of support from Mr Yogender Singh dated 20 October 2019;
·Letter by Maroondah Council dated 21 October 2019;
·Letter of support from The Honourable Bruce Atkinson, MLA, dated 23 May 2019;
·Various photographs of the applicant at work in Taj Agra restaurant; and
·Various documents reading the financial viability and business activities of Taj Agra restaurant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed but refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb)(iv and v).
English language proficiency
The English language requirements for this visa are set out in cl.457.223(4)(eb) and (ec). They differ depending on the applicant’s circumstances. In the present case cl.457.223(4(eb) is relevant. It requires that:
·if the applicant is not an exempt applicant as described in IMMI 17/057; and is not a person who will be paid at least a level of salary specified in that instrument in circumstances where it is considered the granting of the visa would be in the interests of Australia; then he or she must have achieved in a single attempt a test score specified in that instrument in the specified time.
There is no evidence before the Tribunal which indicates that the provisions of cl.457.223(4)(eb)(i) and (ii) do not apply to the applicant and therefore cl.457.223(4)(eb)(iv) and (v) require the applicant to undertake a language test specified by the Minister in the relevant legislative instrument and that the applicant has achieved in a single attempt a specified test score in the specified time.
The Tribunal notes that whilst the applicant has undertaken a number of English language tests, there is no evidence before it which demonstrates that the applicant has undertaken a language test specified by the Minister in the relevant legislative instrument and that the applicant has achieved in a single attempt a specified score in the specified time.
In his statement dated 22 October 2019 the applicant states:
I understand why my visa was refused. It was because I did not have sufficient scores on my English language test. I have sat the English language test (IELTS and PTE) about 20 times. I do my very best each time, but I just cannot manage to get the scores. Most recently I sat the test on 15 October 2019. I was even taking tuition courses at Dream IELTS centre in Nobel Park. Still, I could not get the scores I required.
The Tribunal further notes that in his submissions to the Tribunal the applicant concedes that he is unable to meet the requirements set out in cl.457.223(4)(eb)(v) because he has not been able to achieve the English language score required for the grant of a subclass 457 visa.
On the basis of the above material, the Tribunal finds that the applicant does not satisfy the requirements of cl.457.223(4)(eb).
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
APPLICANT’S SUBMISSIONS
The applicant submits that the applicant’s circumstances warrant the exercise of the Minister’s discretion under s.351 of the Act, based on the applicant’s long employment as a chef in Australia.
The applicant is a national of India who is married with two children. His family are currently living in India. The applicant gained considerable experience as a chef in India before arriving in Australia in 2005. This experience included six years at the Le Meridian, a five star hotel in new Delhi where he commenced as a Commis chef and progressed to the position of Chef de Partie.
Whilst in Australia, the applicant has been the holder of a number of Subclass 457 visas. At the time he was granted the first of these visas, there were no English language requirements imposed on Subclass 457 visa applicants and therefore the applicant was not required to demonstrate his English language skills.
Throughout his time in Australia, the applicant has been employed a chef in various Indian restaurants. The Tribunal accepts that until his current employment, the applicant experienced considerable difficulties in his employment conditions and the attitude of his previous employers to continued sponsoring of his position in their business.
In January 2019 the applicant commenced employment at Taj Agra restaurant in Ringwood, Victoria, as head chef. This business has been operating for over 26 years and offers North Indian Tandoori cuisine.
In his written reference, Mr Yogender Singh (Managing Director of the business) attests to the applicant’s skills as a chef, his ability to operate a restaurant kitchen and train and assist in the management of his business. Mr Singh describes the applicant as one of the most experienced, versatile and diligent chefs I have ever worked with. Mr Singh indicates that he wishes to continue employing the applicant in his current position and that over the past few years it has been difficult for his business to retain and recruit staff.
In his reference, The Honourable Bruce Atkinson attests to the business’ good reputation for traditional and modern Indian food.
The applicant’s English language scores, obtained at various times in 2017 and 2018 demonstrate that the applicant often obtained a qualifying band score of 30 in the Reading and Writing components of the test but regularly fell below for Speaking and Listening. The long periods spent by the applicant working in the kitchens of Indian restaurants, communicating with other staff members in the Hindi language, prevented the improvement of his spoken English language skills.
The applicant’s employment history in Australia reveals one of the worst cases of abuse suffered by a visa holder under the Subclass 457 program.
If the applicant’s current employer had been in a position to nominate the applicant for a position under the 457 scheme, it is likely that the applicant would have been able to satisfy the English language requirement of cl.457.223(4)(eb)(ii), on the grounds of the salary based exemption of cl.457.223(6) and Item 10 of IMMI 17/057.
The documentation provided to the Tribunal by the applicant demonstrates that exceptional economic benefit would result from the applicant being permitted to remain in Australia and circumstances not anticipated or unintended by legislation or the application of relevant legislation has led to unfair or unreasonable results in the case of the applicant.
FINDINGS
In making this referral the Tribunal has taken into account the following factors:
·The applicant’s employer operates a longstanding and viable business with a good reputation in its local area.
·The applicant’s employer is currently an approved standard business sponsor.
·The applicant is a highly experienced chef with many years working in restaurant kitchens and who possesses specialist skills in North Indian and Tandoori cooking. Since his arrival in Australia in 2005 he has been continuously employed and been a diligent and hard- working employee.
·The applicant is currently employed as a chef in a position which is open to him on an ongoing basis and his employer is supportive of him remaining in such employment.
·The applicant has made and is likely to continue making a contribution to the Australian economy through his employment, if he is granted a substantive visa and remains in Australia.
The Tribunal has further taken into account that the applicant’s unfortunate visa history in Australia is due primarily to the attitude and behaviour of his previous sponsoring employers.
The Tribunal also accepts that when the applicant initially arrived in Australia 2005 and was granted the first of his Subclass 457 visas, there were no English language requirements imposed on Subclass 457 visa applicants and he was therefore not required to demonstrate his English language skills.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal considers that the evidence supports the applicant’s lawful retention in Australia as a holder of a substantive visa and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.
Amanda Mendes Da Costa
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2019] AATA 4693

28 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction