Shi (Migration)

[2017] AATA 2635

Shi (Migration) [2017] AATA 2635 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Huakang Shi
Ms Yuqin Wang
Mr Yu Shi

CASE NUMBER:  1609021

DIBP REFERENCE(S):  BCC2015/2731488

MEMBER:Danica Buljan

DATE:4 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2017 at 10:58am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – IELTS Test Scores – Demonstrate Vocational English at the time of the application – Personal hardship – Economic benefit to Australia

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 351, 353, 363(1)
Migration Regulations 1994, Schedule 2, cl 186.222

CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Immigration on 2 June 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 18 September 2015. 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 (‘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 to 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 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 ‘Metal Polisher’ (ANZSCO[1] Code 322115). This stream is designed for Subclass 186 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations; Latest issue release 26 June 2013. See

5. The delegate refused to grant the visas because the applicant did not meet clause 186.222 of Schedule 2 to the Regulations, as he had not demonstrated at the time of application that he had ‘vocational English’, or that he was a person who was exempt from this requirement under the legislation.

6. The applicants lodged an application for review with the Tribunal on 17 June 2016, and a copy of the primary decision was included with the application for review.[2] 

   [2]     AAT Case file 1609021 (T1), f.1-7

7. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file BCC2015/2731488, folio numbered 1-192

   [4]     AAT Case file 1609021, folio numbered 1-23

8. Although the applicants appeared before the Tribunal by telephone on 11 September 2017 to give evidence and present arguments, only the applicant gave oral evidence. The applicants were self-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

10. Division 186.2 ‘Primary criteria’ in Subclass 186 provides that the primary criteria an applicant in the Temporary Residence Transition stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.22 (‘Criteria for Temporary Residence Transition stream’). 

11. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

12. The issue in the present case is whether the applicant meets the requirements of clause 186.222 of the Regulations.

    English language proficiency

13. Specifically, for applicants in the Temporary Residence Transition stream clause 186.222 provides:

    186.222At the time of application, the applicant:

    (a)had vocational English; or

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    Paragraph 186.222(a) - Vocational English:

14. ‘Vocational English’ is defined in regulation 1.15B of the Regulations. A person will have vocational English if he or she either:

    ·undertook a specified language test[5] in the three years immediately preceding the visa application[6] and achieved a specified score;[7] or

    ·holds a specified passport.[8]

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15B, 1.15D and 1.15EA)', 3 December 2014. 

    [5] Paragraph 1.15B(1)(a) of the Regulations

    [6] Paragraph 1.15B(1)(bb) of the Regulations

    [7] Paragraph 1.15B(1)(c) of the Regulations

    [8] Subregulation 1.15B(2) of the Regulations

15. The applicant stated in his visa application form that he was a citizen of China.[9] He also provided a copy of a valid Chinese passport[10] in support of his application. In addition, at the hearing the applicant gave oral evidence that he did not hold a valid passport issued by any other country.

    [9]     D1, f.177

    [10]    D1, f.150

16. Accordingly, the Tribunal is satisfied that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 18 September 2015. Therefore, the Tribunal finds that he did not have ‘vocational English’ on this basis and as set out in IMMI 15/005[11] for the purposes of subregulation 1.15B(2) of the Regulations.

    [11]    See subclause 5.C of IMMI 15/005

17. Subregulation 1.15B(1) requires the applicant to have undertaken a specified English language test, and to have achieved the specified score during the three years immediately before the lodgment of his visa application.

18. For this purpose, the applicant stated in his visa application form that he had not undertaken an English language test within the last 36 months prior to lodging this application, and that he also did not have ‘functional English’.[12] In addition, the applicant answered “No’ to the question regarding whether he was seeking an exemption from the English language requirement.[13]

    [12]    D1, f.188

    [13]    D1, f.190

19. Nevertheless, the applicant subsequently provided to the Department a copy of the results he had achieved in the International English Language Testing System (‘IELTS’) test he had undertaken on 11 April 2015.[14] Specifically, the applicant achieved the following IELTS test scores in this test: 3.5 for listening, 2.0 for reading and speaking, and 4.0 for writing, with an overall band score of 3.0.

    [14]    D1, f.109

20. The applicant confirmed these results at the Tribunal hearing. He also advised that he had not otherwise undertaken an Occupational English Test, a Test of English as a Foreign Language internet-based Test, a Pearson Test of English Academic, or a Cambridge English: Advanced Test.

21. The Tribunal notes that subclause 5.B(i) of IMMI 15/005 specifies that an applicant must have achieved a score of at least 5.0 in each of the four IELTS test components of listening, reading, writing and speaking in order to have ‘vocational English’ for the purposes of paragraphs 1.15B(1)(a) and (c) of the Regulations. In addition, paragraph 1.15B(1)(bb) provides that the test must have been conducted in the three years immediately before the day on which the application was made.

22. Accordingly, as the application was made on 18 September 2015, the Tribunal finds that the IELTS test the applicant undertook on 11 April 2015 meets the requirements of paragraph 1.15B(1)(bb) in the definition of ‘vocational English’ in regulation 1.15B.

23. However, the applicant achieved test scores of 3.5 for listening, 2.0 for reading and speaking, and 4.0 for writing in this test. As a result, the applicant did not achieve an IELTS test score of at least 5.0 in each of the four test components of listening, reading, writing and speaking in the test he undertook on 11 April 2015. 

24. Consequently, the Tribunal finds that the results the applicant achieved in this test do not meet the requirements of subclause 5.B(i) in IMMI 15/005 for the purposes of paragraphs 1.15B(1)(a) and (c), and thus subregulation 1.15B(1) of the definition of ‘vocational English’.

25. The applicant has not submitted to the Tribunal any other IELTS test results undertaken in the three years prior to the lodgment of his visa application on 18 September 2015. He also confirmed at the hearing that he had not undertaken any of the other tests specified in clause 5.A of IMMI15/005 for the purposes of subregulation 1.15B(1).

26. As a result, and given its findings in respect of subregulations 1.15B(1) and (2) above, the Tribunal finds that the applicant did not have ‘vocational English’, as defined in regulation 1.15B at the time of application.

27. Therefore, the Tribunal is satisfied that he does not meet the requirements of paragraph 186.222(a) of the Regulations.

    Paragraph 186.222(b) – Specified Class of Exempt Persons:

    (a)The Application of Legislative Instrument IMMI 17/058:

28. In the alternative, paragraph 186.222(b) requires that, at the time of application, the applicant was a person in a class of persons specified for this paragraph.

29. However, as noted above, Division 186.2 also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

30. The Tribunal observes that when the applicant lodged his visa application on 18 September 2015, the instrument that specified the class of persons for paragraph 186.222(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[15]

    [15]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015

31. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.222(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[16]

    [16]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’, 23 June 2017

32. Notably, at the time of the Tribunal’s decision there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083, should be applied for the purposes of paragraph 186.222(b). 

33. The Tribunal has also become aware of a departmental media release (dated 11 July 2017[17]) that seeks to clarify changes to employer-sponsored permanent visas, and which states:

    The business community should be assured that changes to the exemption to English language and skills assessment requirements for employer-sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017.

    The Government is removing the exemption for applicants earning over $180,000 per year for English language and skills assessments for the Employer Nomination Scheme (Subclass 186) and Regional Sponsored Migration Scheme (Subclass 187).

    In implementing this change, the Department will ensure it only affects applications lodged from 1 July.

    The removal of the exemption is designed to prevent misuse of the program by individuals inflating their income to avoid having to undertake an English test or a skills assessment.

    Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.

    [Tribunal emphasis]

    [17]    T1, f.20 - Accessed 16 and 28 November 2017

34. However, the Tribunal observes that at Part 4 of IMMI 17/058, subparagraph 13(1) specifically states that ‘[t]his instrument applies to applications for Subclass 186 and Subclass 187 visas …made before 1 July 2017 and not finally determined by that date.’

35. In other words, IMMI 17/058 repealed and replaced IMMI 15/083. As a result, it applies to a Subclass 186 visa application, such as the current application, that was made before 1 July 2017 and not determined by that date.[18]

    [18]    See IMMI 17/058, Part 4, clause 13 at page 5

36. In addition, the Tribunal notes that the Courts have held that the departmental policy set out in the ‘Procedures Advice Manual 3’ (‘PAM3’) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. Consequently, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[19] As a consequence, it is well established that whilst the Tribunal may be guided by policy, it is not bound to follow it.[20]

    [19]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

    [20]    See Brennan, J. in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

37. Importantly, and for analogous reasons, the Tribunal considers the contents of a departmental media release cannot be binding upon it, especially in relation to the task of construing a particular legislative provision in the Regulations.

38. As a result, to the extent the departmental media release issued on 11 July 2017 seeks to override the wording of IMMI 17/058, the Tribunal considers that it constitutes an impermissible gloss on the wording and effect of this legislative instrument.

39. Accordingly, given the wording of Division 186.2, clause 186.222 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case.

40. For the purposes of paragraph 186.222(b), IMMI 17/058 specifies the following class of persons at clause 12:

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. 

41. The applicant submitted a copy of his resume in support of his visa application, which does not indicate any study that would come within clause 12 of IMMI 17/058.[21] At the hearing the applicant also gave oral evidence that he had not completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English prior to the lodgment of his Subclass 186 visa application.

    [21] D1, f.141: As the applicant gave this information in writing during the process that led to the decision under review it comes within the exception in subsection 359A(4)(ba) of the Act: See also See SZLYD v Minister for Immigration and Citizenship [2008] FMCA 805 (Orchiston FM, 19 June 2008) at [30] and ADA15 v Minister for Immigration and Border Protection  [2016] FCCA 291 (Judge Smith, 17 February 2016) at [5] where the Court held that the visa application was quintessentially part of the process that led to the decision under review, such that information contained within the visa application did not need to be given to the applicant under s.424A. Upheld on appeal: ADA15 v Minister for Immigration and Border Protection [2016] FCA 634 (North J, 25 May 2016)

42. Accordingly, given the evidence before it, the Tribunal finds that the applicant had not completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English at the time he lodged his visa application on 18 September 2015.

43. As a result, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 17/058, an instrument in writing for the purposes of paragraph 186.222(b) at the time of application.

44. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.222(b) and clause 186.222.

    (b)The Application of Legislative Instrument IMMI 15/083:

45. Further, in the event that the correct interpretation of paragraph 186.222(b) requires the Tribunal to apply IMMI 15/083, it observes that IMMI15/083 specifies at clause 2 two classes of person who are exempt for the purposes of paragraph 186.222(b). These are:

    ·Clause 2:

    Class 1

    Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Taxation Office’s top individual income tax rate.

    ·Clause 4:

    Class 3

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. 

46. In relation to clause 2 and Class 1 in IMMI 15/083, at the time of the Tribunal’s decision, the current top individual income tax rate set by the Australian Tax Office is $180,001 and over. This was also the rate that applied when the applicant lodged his visa application on 18 September 2015.[22]  

    [22]    T1, f.21: See - Accessed 16 and 28 November 2017

47. As noted previously, the applicant indicated in his online visa application form that he was not seeking an exemption from the English language requirement.[23] There is also little in the applicant’s oral evidence at the hearing, or in the documentary evidence before the Tribunal, to suggest that his earnings had reached the top income tax rate of $180,001 at the time of application.

    [23]    D1, f.190

48. As a consequence, the Tribunal is satisfied that the applicant did not come within Class 1 of the persons specified in clause 2 of IMMI 15/083 for the purposes of paragraph 186.222(b) at the time of application.

49. In terms of clause 4 and Class 3 in IMMI 15/083, apart from some minor changes in relation to the wording of this clause compared to the class of persons listed in clause 12 of IMMI 17/058 for the purposes of paragraph 186.222(b), clause 4 in IMMI 15/083 largely reflects what is set out in clause 12 in IMMI 17/058.

50. As a result, and for the reasons set out above, the Tribunal also finds that the applicant had not completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English at the time he lodged his visa application on 18 September 2015. Therefore, the Tribunal is also satisfied that the applicant is not a person specified in Class 3 of clause 4 in IMMI 15/083.

1. Given the above findings, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 15/083, an instrument in writing, for the purposes of paragraph 186.222(b) at the time of application.

   Summation:

2. Consequently, the Tribunal is satisfied that at the time of application the applicant was not a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b). Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.222(b).

   Other Matters

3. At the Tribunal hearing the applicant gave evidence that, whilst his English language proficiency was not at the level required for the purposes of his visa application, he was endeavouring to improve his English language skills.

4. The applicant also referred to the fact that his family was with him in Australia and that his son, the third-named applicant, was enrolled in school and that any decision that required his family to leave Australia would be disruptive to his son’s education. In particular, the applicant stated that his son was due to undertake his Year 12 examinations from October 2017 to November 2017.

5. In addition, the applicant gave evidence that he and his family had nowhere to return to in China, as their home had been destroyed by a hurricane. Consequently, he claimed that they would experience hardship if required to return to China. Finally, the applicant submitted that his sponsoring employer was very satisfied with his work and was willing to sponsor him for a visa to remain in Australia.

6. In other words, the applicant effectively requested that the Tribunal adjourn the review under subsection 363(1)(b) of the Act, waive the mandatory requirements for the grant of the visa, and/or refer the matter to the Minister under section 351 of the Act.

   (a)The Tribunal Discretion to Adjourn the Review:

7. Accordingly, the Tribunal has considered whether the applicant’s claims provide a basis for it to adjourn the review in his favour under subsection 363(1)(b) of the Act.

8. In considering its discretion, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[24] and Manna v Minister for Immigration and Citizenship[25] where the Courts have held that it is not required to indefinitely defer its decision-making processes.

   [24] [2002] FCA 617

   [25] [2012] FMCA 28

9. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[26] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[27] which also considered this issue.

   [26] [2013] HCA 18 (8 May 2013)

   [27] [2014] FCAFC 1 (4 February 2014)

10. Specifically, the Tribunal also taken into account the decision in Chen v Minister for Immigration and Border Protection[28] where the Court upheld a decision by the Tribunal (differently constituted) not to defer its decision until the Department had finalised a pending related application that was relevant to the criterion in dispute.[29]

    [28] [2016] FCCA 2351

    [29] The criterion in issue in this case was whether the applicant had an approved nomination in his favour from a standard business sponsor at the time of decision as required by paragraph 457.223(4)(a) of the Regulations.

11. The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[30], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process”.

    [30] [2011] FCA 759 at [22]

12. In the present matter, the Tribunal acknowledges that the applicant has not repeatedly applied for extensions of time.

13. Nevertheless, the Tribunal notes that the applicant provided a copy of the primary decision record (dated 2 June 2016) relating to the refusal of his Subclass 186 visa application with the application for review he lodged on 17 June 2016. This decision record set out the basis for the refusal of the applicant’s visa application. In particular, it stated that, as the applicant did not have ‘vocational English’ (as defined), he did not meet the requirements of clause 186.222 at the time of application, one of the essential criteria for the grant of the Subclass 186 visa.

14. As a result, the Tribunal observes that the applicant has been aware of the reasons for the refusal of his Subclass 186 visa for approximately 18 months at the time of decision.

15. In addition, and as explained to the applicant at the Tribunal hearing, the wording of clause 186.222 specifically requires him to demonstrate that at the time of application he had ‘vocational English’, or that he was in a class of persons specified by the Minister that was exempt from this requirement. 

16. As such, clause 186.222 is drafted in the past tense and there is little in its wording to suggest that an English language test undertaken after the lodgment of the visa application can be relied upon to meet the requirements of this provision.

17. In this case, the Tribunal accepts the applicant’s oral evidence that he has made genuine efforts to improve his English language proficiency. However, given the wording of clause 186.222, the Tribunal cannot take into account any future IELTS (or any other specified English language test) undertaken by the applicant for the purposes of the visa application he lodged on 18 September 2015.

18. Moreover, even if the Tribunal adjourned the review to allow the applicant to undertake another specified English language test, the fact remains that, given the wording of clause 186.222, this would not alter the requirements of this provision. This would be the case even assuming that the applicant could achieve the results required to demonstrate ‘vocational English’. In any event, there is little in the evidence that points to the likelihood that the applicant would achieve the specified test scores to demonstrate ‘vocational English’ if the Tribunal granted him another opportunity after the lodgment of his visa application to undertake a specified English language test.

19. On the other hand, the evidence as a whole confirms that the applicant did not have ‘vocational English’, as defined in the Regulations, at the time of application on 18 September 2015 and that he, therefore, does not meet the requirements of clause 186.222.

20. The Tribunal acknowledges the applicant’s understandable dismay that the failure of his subclass 186 visa application would prevent him and his family from remaining in Australia on a permanent basis. It understands these personal goals and notes that they are not, as such, without merit. The Tribunal also recognises that the applicant’s current circumstances hold personal significance for him and his family in terms of this objective.  In particular, the Tribunal accepts the importance to the applicant and his son of minimising the disruption to his education, given the latter’s enrolment in the Year 12 certificate.

21. For this reason, the Tribunal agreed at the hearing to defer its decision to a date after the Year 12 examinations in Western Australia had concluded. It notes that according to the School Curriculum and Standards Authority for Western Australia the Year 12 written course examinations for 2017 concluded on 21 November 2017.[31]

    [31]    T1, f.22-23: See - Accessed 16 and 28 November 2017

22. The Tribunal has also had regard to the applicant’s claims that his family home has been damaged by hurricanes in China, that he has nowhere to return to, and that he and his family would experience hardship if they were required to return to China. Similarly, it has taken into account the applicant’s evidence that his employer is very satisfied with his work in Australia.

23. However, the evidence regarding these matters is limited to the applicant’s oral evidence at the hearing, and he has not provided any further evidence to the Tribunal to substantiate his claims. Accordingly, given the limitations of the evidence before it regarding these claims, the Tribunal gives these matters less weight in relation to the exercise of its discretion to adjourn the review

24. Correspondingly, the Tribunal observes that apart from the above matters, and given the wording of clause 186.222, there is little in the evidence before it at the time of decision to suggest that it is inappropriate to end the review process. Importantly, the purpose of the review process is to assess whether an applicant meets the criterion in dispute, and it is not directed at facilitating the ability of an applicant to pursue alternative migration avenues to achieve either long-term temporary or permanent residence in Australia.

25. Consequently, in this case the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to have some relevance to the exercise of its discretion under paragraph 363(1)(b) of the Act. This is because there is an element of futility to the current application for review as the wording of clause 186.222 requires the applicant to have met the ‘vocational English’ requirement in clause 186.222 at the he lodged his visa application on 18 September 2015, rather than at some at some later date.

26. Given that the Tribunal has not been given the legal power to waive this mandatory criterion, it observes that the adjournment of the review would not facilitate the applicant’s ability to demonstrate that he met the requirements of clause 186.222. As such, any further adjournment would unnecessarily delay the conduct of the review, contrary to the legislative objects set out in section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick.

27. Therefore, for the above reasons, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further at the time of its decision.

    (b)Ministerial Intervention under Section 351 of the Act:

28. The Tribunal has also considered whether the circumstances the applicant has put forward would warrant referral to the Minister under section 351 of the Act.

29. Specifically, the Tribunal observes that the only person who is able to waive the mandatory criteria for the grant of a visa is the Minister where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.

30. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

31. However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned, as is the case here. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.

32. In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

33. As noted previously, the applicant provided the Tribunal with a copy of the primary decision record that set out the basis for the refusal of his visa application when he lodged his application for review. As a result, the applicant has been aware of the basis for the refusal of his visa application for approximately 18 months at the time of the Tribunal’s decision.

34. Nevertheless, the applicant presented to the Tribunal as a reasonably articulate and personable individual. The Tribunal also understands his natural desire to remain in Australia with his family. It therefore acknowledges that the applicants’ inability to do so is likely to affect them at a financial and personal level, particularly given the oral evidence regarding the potential hardship the applicants’ may face once they return to China.

35. The Tribunal has also had regard to the applicant’s current employment as a ‘Metal Polisher’, and the claim that his employer is willing to sponsor him for a visa. In doing so, it has considered the likely impact the applicant’s absence from Australia will have upon his employer, Balustrading (WA) Pty Ltd

36. As a consequence, the Tribunal does not seek to dismiss or diminish the concerns the applicants expressed at the hearing about these matters, or how they have affected the applicants at a financial, social and emotional level. The Tribunal considers that there are aspects to the applicants’ claims that raise some compassionate grounds. This is in the sense that there may be scope to argue that the applicants are likely to face a measure of personal hardship in China that warrants taking a compassionate view of their circumstances. Alternatively, it is arguable that Australia stands to receive an economic benefit from permitting the applicant to remain in his employment with Balustrading (WA) Pty Ltd. 

37. On the other hand, there are other facets to the evidence that detract from a referral to the Minister under section 351 of the Act.

38. In general, the Tribunal considers that the emotional, financial and/or social impact upon the applicants of the decision to refuse the subclass 186 visa applications needs to be balanced against the evidence which indicates that they do not meet the criteria for this visa subclass. In addition, the Tribunal observes that the applicant’s failure to meet the requirements of clause 186.222, which has resulted in refusal of his visa application, is a circumstance that is anticipated under the legislation. As such, it is not a circumstance that comes within the Ministerial guidelines.

39. Further, whilst the Tribunal has had regard to the potential hardship the applicants might face if they return to China, it notes that the Ministerial guidelines do not focus on the economic or financial hardship non-citizens might face if they do not meet the criteria for the grant of a particular visa and are required to return to their country of origin. Rather, the emphasis in the Ministerial guidelines is on “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”.[32]

    [32]    Paragraph 4 of the ‘Minister’s Guidelines on Ministerial Powers’

40. Correspondingly, although there is the potential for Australia to benefit from the applicant’s ongoing employment with Balustrading (WA) Pty Ltd, the evidence before the Tribunal to confirm that this would be the case is somewhat limited.  

41. Therefore, there is little in these aspects of the applicants’ current circumstances to bring the parties within non-binding guidelines for section 351 of the Act, or otherwise, to warrant referral to the Minister under this provision.

42. The Tribunal has considered whether there is anything in the applicant’s circumstances outside the Ministerial guidelines that would still warrant a referral being made under section 351 of the Act. However, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal is not persuaded that such circumstances exist. Accordingly, it has decided not to refer the matter to the Minister under section 351 of the Act.

43. Nevertheless, the Tribunal notes that the applicant can still make a request directly to the Minister with additional evidence to support his claims for Ministerial intervention under section 351 of the Act.

    CONCLUSION

44. Accordingly, given its findings in respect of paragraphs 186.222(a) and (b) above, the Tribunal finds that the applicant does not meet the requirements of clause 186.222.

45. 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.

46. To meet clause 186.311 the applicant's spouse and child, the second and third-named applicants (the 'secondary applicants'), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 186 visa.

47. As the applicant does not satisfy the primary criteria for a Subclass 186 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a Subclass 186 visa.

    DECISION

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

    Danica Buljan
    Member