Perez Vargas (Migration) - [2020] AATA 465

Perez Vargas (Migration) [2020] AATA 465 (17 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Sergio Rene Perez Vargas
Mrs Lilian Evangelina Rosal Morales de Perez
CASE NUMBER:  1915502
HOME AFFAIRS REFERENCE(S):          BCC2019/1001931
MEMBER:Katie Malyon
DATE:17 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 17 January 2020 at 5:20 pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Medical Practitioner – did not undertake English language test in 3 years preceding visa application – does not hold specified passport – referred for Ministerial intervention – unique and exceptional circumstances – significant contribution to medical profession and community – regional Australia – young family – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations (Cth) 1994, r 1.15C, Schedule 2, cl 186.222

CASES
Kaur v Minister for Immigration & Anor [2018] FCCA 1657
Kumar & Anor v Minister for Immigration & Border Protection & Anor [2017] FCCA 2406
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 May 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 27 February 2019. At the time of application, Class EN contained just one subclass: Subclass 186 (Employer Nomination Scheme).
Criteria for the grant of a Subclass 186 visa are set out in Part 186 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.
In the present case, the first named applicant – Guatemalan national Dr Sergio Rene Perez Vargas – is seeking the visa in the TRT stream to continue working in his nominated position of Medical Practitioner ANZSCO 253999 with his employer J R Schulze Pty Ltd T/A Absolute Medical Services (the Company).
The delegate refused to grant the visas on the basis Dr Perez Vargas did not meet cl.186.222 of Schedule 2 to the Regulations because he did not demonstrate that he had, at the time of 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.
Dr Perez Vargas and his wife appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons set out below, the Tribunal has decided to refer this matter to the Minister for his personal intervention pursuant to s.351 of the Act. In the opinion of the Tribunal, the circumstances prompting the Tribunal’s referral to the Minister in this case are compellingly unique and exceptional.
Background
On lodgement of the review application, the applicants provided the Tribunal with the following relevant documentation:
·the Department’s decision dated 1 April 2019 approving the Company’s related nomination of the position of Medical Practitioner nec ANZSCO 253999 for Dr Perez Vargas;
·IELTS Test Report for Dr Perez Vargas dated 24 August 2006 with scores of Listening 7.0, Reading 7.0, Writing 7.0 and Speaking 7.0 and an Overall Band Score of 7.0;
·Local Hero Awards Certificate of Honour dated 28 May 2016 issued to Dr Perez Vargas by the NSW Central Coast Council; and,
·AFP National Police Certificate for the applicants dated 12 February 2019.
On 20 September 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision to refuse their Subclass 186 visa applications. The Tribunal informed the applicants a review of their file suggests that, at the time the visa application was lodged, Dr Perez Vargas did not demonstrate he met the ‘competent English’ language requirement or that he was exempt from meeting that requirement: as a result, he cannot meet the criteria in cl.186.222 of Schedule 2 to the Regulations and, in these circumstances, the Tribunal must affirm the decision under review.
The applicants responded to the Tribunal’s s.359A letter with a submission and included another IELTS Test Report dated 19 June 2019 for Dr Perez Vargas with an overall band score of 7.5. Dr Perez Vargas and his wife were invited to attend a hearing.
Hearing
The applicants appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.
At the commencement of the hearing, the Tribunal outlined the requirements in cl.186.222 of Schedule 2 to the Regulations. Dr Perez Vargas told the Tribunal that he did an IELTS test in 2006 which demonstrated that he had ‘competent English’ such as he was able to be registered with the Australian Health Practitioner Regulation Agency (AHPRA) as a Medical Practitioner. Since then, in his more than 10 years in Australia, he has held 3 Subclass 457 visas sponsored by the Company and has used English exclusively when communicating with patients at the Absolute Medical Services practice in Lisarow on the NSW Central Coast.
In the circumstances, Dr Perez Vargas said he thought that he met the English language requirements for the purposes of permanent residence when he completed the applicants’ Subclass 186 visa application online. He added that he is not an immigration lawyer and it was an honest misunderstanding on his part. When he was asked in the course of completing the online application as to whether he had undertaken an English-language test in the last 36 months, he truthfully answered the question “No”.
The Tribunal observed that although the IELTS test undertaken 26 August 2006 provided to the Tribunal before the hearing and the further IELTS test results in relation to the test undertaken 19 June 2019 confirm that Dr Perez Vargas meets the ‘competent English’ language test, based on its examination of his Subclass 186 visa application in the Department’s file, it was evident that he responded “No” to the question of whether he had undertaken an English-language test in the last 36 months prior to lodgement of the application and, relevantly, he did not accompany his Subclass 186 visa application with any such evidence. The Tribunal explained to Dr Perez Vargas that it has no discretion and must apply the law. In the circumstances, it must affirm the delegate’s decision. Dr Perez Vargas acknowledged the Tribunal’s observation in this regard.
The Tribunal then discussed the possibility of an application under s.351 of the Act for the Minister’s personal intervention, either on the applicants’ own motion or on referral from the Tribunal. It invited the applicants to not only seek professional advice but also forward documentation to the Tribunal so that it could consider the appropriateness of referring the matter to the Minister. They indicated their intention to do so and the Tribunal agreed to provide additional time in which they could provide such documentation to the Tribunal before making its decision.
Dr Perez Vargas and his wife, the second named applicant Mrs Rosal Morales de Perez, then told the Tribunal that they have 2 children. The couple’s daughter is an Australian permanent resident. Although Mrs Rosal Morales de Perez is also a Medical Practitioner she is no longer working and helps her daughter care for her 3 young Australian citizen children, the youngest of whom is only 2 months old. Their son lives in Germany and is studying Medicine: his German wife is a Medical Practitioner.
On 22 October 2019, the applicants appointed registered migration agent, accredited immigration law specialist Kathryn Viegas of Nomos Legal, to represent them in relation to the review. The representative provided the Tribunal with extensive documentation for the Tribunal to consider as part of a possible referral to the Minister pursuant to s.351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue in the present case is whether one of the applicants meets criteria in cl.186.222 of Schedule 2 to the Regulations.
English language proficiency
Clause 186.222 of Schedule 2 to the Regulations requires that, at the time the visa application is made, an applicant in the TRT stream must either:
(a)have ‘competent English’; or,
(b)be in a class of persons specified in a legislative instrument.
Does the applicant have ‘competent English’?
The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if they either:
·undertook a specified language test in the 3 years preceding the visa application and achieved a specified score; or,
·hold a specified passport.
The relevant tests, scores and passports for these purposes are specified in IMMI 15/005.
The Department’s file confirms Dr Perez Vargas responded “No” to the question in the application form as to whether he had undertaken a specified language test in the 3 years preceding lodgement of the application. He confirmed this at the hearing.
Dr Perez Vargas holds a Guatemalan passport. This is not one of the 5 countries specified in IMMI 15/005 being the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland.
Evidence before the Tribunal confirms Dr Perez Vargas did not undertake an English language test specified in IMMI 15/005 for ‘competent English’ and nor does he hold a specified passport. Accordingly, the Tribunal finds that Dr Perez Vargas does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations.
Therefore, cl.186.222(a) of Schedule 2 to the Regulations is not met.
Is the applicant within a class of specified persons?
As both the Company’s nomination application and the applicants’ Subclass 186 visa application were lodged after 18 March 2018, the relevant legislative instrument for the purposes of cl.186.222(b) of Schedule 2 to the Regulations is IMMI 18/045.
Clause 10 of that instrument specifies as persons who are exempt from the need to provide evidence of having ‘competent English’ are:
Persons who have completed at least five years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English.
Evidence before the Tribunal indicates that Dr Perez Vargas is not a person who has completed at least 5 years full-time study in a secondary or higher education institution where all of the tuition was delivered in English. He confirmed this at the hearing.
Therefore, cl.186.222(b) of Schedule 2 to the Regulations is not met.
Conclusion
As the Tribunal has found that Dr Perez Vargas does not satisfy either cl.186.222(a) or cl.186.222(b) of Schedule 2 to the Regulations, it therefore finds that cl.186.222 of Schedule 2 to the Regulations is not met.
Dr Perez Vargas has only sought to satisfy the criteria for a Subclass 186 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.
The application of Mrs Rosal Morales de Perez is based on her being a member of the family unit of a person who meets the primary criteria. As Dr Perez Vargas does not meet the primary criteria, Mrs Rosal Morales de Perez cannot meet criteria for the grant of the visa. Accordingly, the Department’s decision to refuse her application must also be affirmed.
Is this an appropriate matter to refer to the Minister?
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).
The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for consideration of use of his 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 powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1] The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention. The guidelines indicate that the Minister will give possible consideration to exercising his 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, relevantly:
·strong compassionate circumstances that if not recognised as result in serious, ongoing and irreversible home and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen for Australian permanent resident;
·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.
[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[2] and whether this is an appropriate case to refer to the Minister.
[2] >
The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.
In support of the Tribunal’s referral of the matter to the Minister, the applicants’ representative has provided extensive documentation to the Tribunal including a submission dated 29 November 2019 which addresses the guidelines issued by the Minister explaining the circumstances in which the Minister may wish to consider exercising his public interest powers.
The representative’s submission is accompanied by documentation including:
1)a Petition in support of the applicants’ seeking Ministerial Intervention which has been signed by over 600 patients of Absolute Medical Services at Lisarow NSW where Dr Perez Vargas has worked for the last 11 years;
2)letters addressed to the Minister from over 100 members of the public including patients and colleagues of Dr Perez Vargas as well as family, friends and members of the public in support of the applicants. These letters include:
a)a letter of support from Dr Perez Vargas’ employer, Dr John Schulze and Mrs Carol Hextall of Absolute Medical Services;
The letter states that experienced GPs are in chronic shortage in the NSW Central Coast region and that Dr Perez Vargas’ absence will be devastating to the patients of the practice. Dr Schulze and Mrs Hextall also state it would be unlikely that they would be able to replace him, as there are no suitable doctors available and many more patients will need to be turned away. Since the practice has become aware of Dr Perez Vargas’ visa situation, there has been an outpouring of support from colleagues, patients, staff and locals reinforcing the support for the applicants;
b)letters of support from professional colleagues at Absolute Medical Services Dr Hyland and Dr Hayes as well as Registered Nurse / Primary Health Care Manager Ms Parry and recently retired Medical Secretary Ms Sugitha;
c)letters of support from recognised members of the community including Sergeant Greg Lea of the NSW Police Force and retired Sergeant Geoffrey Jollow, and,
d)a letters of support from the applicants’ daughter, Australian permanent resident, Ms Lilian Gabriela Perez Rosal and son-in-law Tim Wright;
3)Australian Birth Certificates of the applicants’ 3 Australian grandchildren: 6 year old Francis Wright; 3 year old Alexis Wright; and, now 4 month old Eliana Wright;
4)NSW Marriage Certificate of Lilian Gabriela Perez Rosal and Timothy Wright dated 6 August 2011;
5)Notification of Subclass 801 visa grant to Lilian Gabriela Perez Rosal; and,
6)multiple photographs of the applicants with family members and friends;
Dr Perez Vargas and his wife presented to the Tribunal as extremely articulate and personable individuals. The Tribunal also found them to be credible witnesses. In support of their application to the Minister, the Tribunal notes in particular the Petition with signatures from more than 600 NSW Central Coast residents. In addition, more than 100 letters confirm the exceptional contribution made by Dr Perez Vargas not only by way of provision of medical services on the NSW Central Coast for over more than a decade but also his contribution to being an asset to the close-knit local community on the NSW Central Coast.
Having regard to evidence provided, it is clear that the applicants find themselves in this situation because Dr Perez Vargas thought that he met the English language requirement of having ‘competent English’ as he continues to be registered with AHPRA as a Medical Practitioner and he has met the requirements in respect of each of his 3 Subclass 457 visas. As such, Dr Perez Vargas truthfully responded “No” to the question as to whether he had undertaken an English language test in the 3 years prior to lodgement of the visa application.
The Tribunal notes that Federal Circuit Court of Australia (FCCA) has commented on the absence of any warning to applicants about the consequences when responding “No” to questions in the online visa applications: Kumar & Anor v Minister for Immigration & Border Protection & Anor [2017] FCCA 2406, Driver J at [14] (Kumar’s case). That particular case involved an applicant’s negative response to the question regarding whether he had undertaken an English language test within 3 years of lodgement of a Subclass 485 Graduate Skilled visa after completing tertiary studies in Australia. His Honour observes that the applicant makes the ‘reasonable point’ that ‘it would be kinder to applicants and perhaps more efficient if the online form prevented applicants proceeding further once they answered the question in the negative’. Driver J’s comments in Kumar’s case have been recognised by Neville J in Kaur v Minister for Immigration & Anor [2018] FCCA 1657.[3]
[3] Driver J’s comments in Kumar’s case echo 2 principles of the Standard published by the Australian Government’s Digital Transformation Agency. Principle 1 (Understand user needs) and Principal 3 (Agile and user-centred process) recognise the need for the Government’s digital services to be user focused and to provide support to users.[3] The Australian Government’s 2007 report Automated Assistance in Administrative Decision-Making – Better Practice Guide observes that managing user input is critical to the risk of error or misrepresentation and recommends that online systems provide a commentary function.[3] It adds that poorly expressed fields or questions present the risk that a decision will be made without sufficient information: see type="1">
If, as contemplated by Driver J, Dr Peres Vargas had been prevented from proceeding further with his Subclass 186 visa application once he responded in the negative to the question as to whether he had undertaken an English-language test in the last 36 months, he may well have sought professional advice or been prompted to review the Department’s website for more information for intending Subclass 186 applicants. He may also have contacted the Department for advice. The Tribunal accepts that this is speculative but it may well have resulted in him not proceeding with lodgement of the applicants’ Subclass 186 visa application.
The Tribunal has considered the applicants’ case, their representative’s submission, the Ministerial guidelines relating to the discretionary power of referring the matter to the Minister and the Tribunal President’s Direction. On the evidence before it, the Tribunal is satisfied that Dr Perez Vargas’ past and ongoing contribution to the medical profession in regional New South Wales as well as the applicants’ contribution to their immediate family and the wider Australian community have received widespread recognition. This is reflected in the Petition as well as the many letters of support provided to the Tribunal. It is also clear that Dr Perez Vargas and his wife have an Australian permanent resident daughter who has 3 Australian citizen children and that loss of the applicants to that Australian family would be profound and on-going. Further, Dr Perez Vargas’ employer has confirmed that there is ongoing shortage of medical practitioners, particularly in regional areas. This is confirmed by IMMI 19/047, the Department’s most recent legislative instrument specifying occupations for regional sponsored Subclass 187 visas. It demonstrates that there would be exceptional economic benefit from the applicants being permitted to remain in Australia so that Dr Perez Vargas could continue to work as a Medical Practitioner with Absolute Medical Services. Furthermore, having regard to evidence that Dr Perez Vargas’ English language skills demonstrate that he has had ‘competent English’ and met AHPRA’s standards to practice in Australia as a Medical Practitioner since August 2006, the Tribunal is of the view that application of legislation in this case leads to an unfair result. This is especially so when the observations of Driver J in Kumar’s case referred to above are considered.
Having regard cumulatively to evidence provided, the Tribunal considers that the applicants’ case involves compellingly unique and exceptional circumstances for the reasons outlined above. Accordingly, the Tribunal will refer the matter to the Department for the Minister’s consideration. The applicants and their representative may wish to lodge further supporting documentation with the Department addressing the unique and exceptional circumstances of this case.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Katie Malyon

Member