Serocki (Migration)

[2023] AATA 2607

Serocki (Migration) [2023] AATA 2607 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryszard Ronald Serocki
Mrs Agnieszka Teresa Serocka
Mr Klaudiusz Serocki

REPRESENTATIVE:  Mr Piotr Ferenc (MARN: 0743766)

CASE NUMBER:  2004636

HOME AFFAIRS REFERENCE(S):          BCC2019/5146734

MEMBER:Nicola Findson

DATE:31 July 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

The Tribunal refers the matter to the Department for consideration of the request for Ministerial Intervention.

Statement made on 31 July 2023 at 11:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Welder (First Class) – competent English – Australian citizen family members – support for the applicant’s grandchildren – skills shortage occupation – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 186.222, 186.311; r 1.15

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 on 21 February 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 14 October 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Welder (First Class) (Aus) (ANZSCO 322313).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations, because the delegate was not satisfied that the applicant had the required English language proficiency. The delegate refused to grant subclass 186 visas to the second and third named applicants (the applicant’s wife and child) on the basis that they did not meet the secondary criteria requiring them to be members of the family unit of a person whole held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received an application for review from the applicants on 9 March 2020, which was accompanied by a copy of the delegate’s decision. 

7. The applicants appeared before the Tribunal on 3 February 2023, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Polish and English languages.

8. The applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 18/045: cl 186.222. For visa applications made on or after 1 July 2017 the level required is competent English.

11. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

    In this instance, having regard to the date of visa application, the required level is ‘competent English’. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

12. The Tribunal is satisfied that the applicant holds a passport issued by the Republic of Poland, and that this is not a passport specified in IMMI 15/005.  Therefore, cl 186.222(b) is not met. 

13. The applicant provided a copy of the delegate’s decision to the Tribunal for the purpose of the review.  The decision records that the applicant is not claiming, nor does the evidence show, that he is an exempt applicant, by having completed a minimum of five years full-time study in a secondary or higher education institution where all tuition was delivered in English, as specified in IMMI 18/045.  Rather, in support of the applicant’s claim to have competent English, he provided four IELTS Test Report Forms, relating to tests undertaken by him on 19 August 2017, 30 September 2017, 29 June 2019 and 1 August 2019, as evidence of his English language proficiency.  It was noted by the delegate, however, that upon verifying the IELTS Test details provided by the applicant, the required minimum score of at least 6 in each of the test four test components of listening, reading, writing and speaking had not been achieved by the applicant.  Given this, the delegate found that as the applicant had not provided evidence of having achieved the specified score in an English test within the 3 years immediately before the day on which his application was made, he did not satisfy cl 186.222(a).

14. During the review process, on 30 December 2022, the applicants’ representative provided a written submission to the Tribunal.  In the submission it is conceded that the applicant does not meet the English language requirements for the visa, and that it is the intention of the applicants to pursue review to ultimately seek Ministerial intervention.   

15. A significant bundle of material also accompanied the applicant’s submission, including:

    ·Various letters of support from family and friends;

    ·Opinion dated 1 November 2022 from Child, Adolescent and Family Psychologist Dr Deborah Finney;

    ·Report prepared by Dr Gosia Stasiniski, Registered Counselling Psychologist, dated 6 January 2023;

    ·Work references;

    ·Qualifications of the applicants;

    ·Information relating to an injury suffered by the applicant in the workplace in 2022; and

    ·Photographs.

16. At the hearing, the applicant indicated to the Tribunal that he understood the requirements of cl 186.222, and conceded he had not provided evidence, at the time he applied for the visa, that he had undertaken a language test specified in an instrument and had achieved the score specified, or that he was exempt from the requirement to demonstrate English language competency by way of a test.

17. He told the Tribunal that it had been a dream for his family – himself, his wife and three sons - to come to Australia in 2012.  He indicated that he spent a year studying the English language as the holder of student visa, before finding employment in his trade (on a Subclass 457 visa) with his sponsor, UGL Pty Ltd, in Perth, Western Australia. He said he had done everything he possibly could to learn, and improve in, the English language, and while his day to day English proficiency has been sufficient for his work and personal life in Australia, he found it very difficult to achieve the scores he needed for the visa.

18. The applicant told the Tribunal that his eldest son, Dawid, (not included on the application) has a 3 year-old son with his partner, and is the holder of a Subclass 482 visa.  His second son, Kamil, is now an Australian citizen and has a 6 month old baby girl with his Australian wife.  He said his family are very close and that they provide social and emotional support to each other. He also told the Tribunal that he and his wife are very involved in the lives of their grandchildren.

19. The applicant told the Tribunal that his family has worked extremely hard, and invested a lot, in establishing lives for themselves in Australia. He said they gave up everything in Poland to come to Australia.

20. The applicant told the Tribunal that during the processing time at the Tribunal, in February 2022, he suffered an injury to his back and neck at work.  He told the Tribunal that he has an unresolved work claim with WorkCover and remains under treatment by his GP, with the prospect of requiring surgery to his neck.  He said his position with his sponsor is still available to him, and it is his hope to return to work in the nominated position as soon as possible.

21. The applicant’s representative said he had discussed with the applicants the possibility of seeking Ministerial intervention pursuant to s 351 of the Act, in the event that their review application was unsuccessful.  The Tribunal noted that there appeared to be some circumstances that fell within the type covered by the Ministerial intervention guidelines on the Department’s website, and agreed to consider the applicants request to refer their matter for consideration by the Minister.   It was noted that the Minister’s power under s 351 was entirely personal and non-compellable so that even if the Tribunal referred the matter, there was no guarantee that this would result in the Minister intervening to grant the applicants visas.

22. On the evidence before it, the Tribunal is not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified. The applicant does not claim, nor does the evidence show, that he is an exempt applicant, by having completed a minimum of five years full-time study in a secondary or higher education institution where all tuition was delivered in English, as specified in IMMI 18/045.

23. Therefore, cl 186.222(a), and cl 186.222 as a whole, is not met.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

25. The second and third named applicants rely on their status as members of the same family unit as the applicant. As such, the secondary visa applicants cannot satisfy cl 186.311 of Schedule 2 to the Regulations, which requires that they be members of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria. The visas must also be refused to the secondary visa applicants.

    REFERRAL

26. Under ss 351(1) of the Act the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.

27. The Minister has issued guidelines explaining the circumstances in which he or she may wish to consider exercising his or her public interest powers under ss 351 and the circumstances where he does not wish to consider exercising his powers.  The Tribunal has had regard to those guidelines: LEGEND, (Ministerial powers - Minister's guidelines on ministerial powers (s351, s417 and s501J).

28. There is no evidence of matters identified in the policy that would indicate the matter is not appropriate to be referred to the Minister.

29. In support of the request for intervention (which must be considered and exercised by the Minister personally), the applicants contend that there are strong compassionate circumstances in their case that would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. The evidence before the Tribunal is that the first and second-named applicants’ two eldest sons (not included on the application) are members of an Australian family unit (the second son himself now an Australian citizen) and they have young children – aged 3 years and 6 months - born in Australia.  It is contended that these family units would lose the benefit of the social and emotional support of the applicants if they were required to leave Australia.  An opinion from Child, Adolescent and Family Psychologist Dr Deborah Finney and a report prepared by Dr Gosia Stasiniski, Registered Counselling Psychologist make it clear that the applicants remaining in Australia is important to the integrity of their family unit, and in addition, that it would be in the best interests of the applicant’s grandchildren for them to be involved in their social and emotional development. Statements of the applicant’s adult sons and their partners also set out that they strongly support the family remaining in Australia, as they heavily rely on the assistance of their parents and brother in caring for their children.

30. It is contended that the applicant is a valued and experienced employee of his nominating employer, and that he has worked in the position for over 10 years.  It is contended that his skills are highly regarded, and he is a role model and mentor to his co-workers.

31. It is contended that a serious workplace injury to the applicant’s back and neck in February 2022, and for which compensation has been denied by the employer’s insurer and a resolution from WorkCover WA is pending, amounts to a compassionate circumstance regarding the applicant’s health that if not recognised would result in serious, ongoing and irreversible and continuing hardship.  The applicant’s injury has resulted in him being unable to work up until now, and still requires treatment.

32. It is contended, and evidence has been provided to support, that the applicants have worked hard and invested a lot to integrate into, and become an important part of, their local community, where they have lived for over 10 years.  They are active members of their local church and Polish community; the applicant’s wife (the second named applicant) has a history of work in the mining support sector, hospitality, disability and aged care and has recently invested in a food truck business; and the applicant’s youngest son, the third named applicant, has completed his high school education in Australia, recently qualified as a Painter and Tiler, and is in a serious relationship with an Australian citizen.  It is contended that it would be very disruptive – emotionally, psychologically and financially – if the family were required to return to Poland, and leave their work and social network.

33. It is submitted that the applicant is a skilled and experienced Welder, an occupation for which there is a shortage of workers in Australia.  In addition, the third-named applicant is a qualified Floor and Wall Tiler, which occupation is also in short supply in Australia. 

34. It is acknowledged that the application of relevant legislation leads to unfair or unreasonable results in this case, in that the applicant worked extremely hard to attain, and has always had a level of English proficiency enabling him to successfully live and work in Australia, as evidenced by the considerable number of reference letters he provided and his oral evidence at the hearing.  The Tribunal observes the evidence before it that in addition to his full-time work, the applicant has enrolled in English courses, and undertaken numerous English (IELTS) tests, in the hope of achieving the scores needed, to meet the definition of ‘competent English’.  In addition, at the time of the applicant’s Subclass 457 visa grant in 2015, when he was 45 years old, the transitional pathway to permanent residency under the 186 visa program was available to applicants younger than 50 years old and who had ‘vocational English’. It is submitted that the applicant, at that time, had a reasonable expectation that he would have met the requirements, including the requirement of vocational English, to be eligible for the visa.  However, the law changed in March 2018, making the English requirements for the visa more onerous, and with no transitional arrangements available to the applicant.

35. The Tribunal observes that it appears that the applicant would be unable to reapply for a subclass 186 visa nominated by UGL Pty Ltd, as the applicant is now 53 and this visa category requires applicants to be no older than 45 at the time of application.  The Tribunal further notes, however, that the applicant is still of an age where he could be expected to work full time for at least another 10 to 15 years. 

36. The Tribunal also notes that the purpose of the subclass 186 (Employer Nomination Scheme) visa is for Australian employers to fill vacancies for which there are no, or few, suitable local candidates.  In this case, the applicant has worked for his nominating employer, in what the Tribunal accepts to be a vital role for UGL Pty Ltd in Western Australia, being Welder.  It is submitted that the applicant’s skills and experience in this occupation continue to be difficult to find in Western Australia.

37. The Skills Priority List for 2022 produced by the Australian government’s National Skills Commission lists the occupation of Welder as being in short supply in Western Australia. Given this, the Tribunal accepts that it would be difficult for UGL Pty Ltd to find a Welder locally with the skill, experience and commitment of the applicant, and that losing him would adversely affect this Australian business. 

38. The applicants’ past and present conduct towards the Department is not in issue.  They have always been compliant with their visa conditions.

39. The Tribunal expresses no view about whether it is appropriate for the Minister to intervene, as that is a matter that will first be considered by the Department and then by the Minister personally.  However, when taken together, and cumulatively, the Tribunal is satisfied that these factors constitute significant compassionate and compelling circumstances which warrant consideration by the Minister pursuant to s 351 of the Act, and it refers the case to the Minister for this purpose.

    DECISION

40. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Nicola Findson
    Member