Singh (Migration)

[2023] AATA 3114

Singh (Migration) [2023] AATA 3114 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Salend Jeet Singh
Mrs Shareen Resmi Lata Singh

Miss Natanya Nishta Singh
Mr Nathan Nichel Singh
Miss Naileen Shanya Singh
Miss Neha Saagrika Singh

REPRESENTATIVE:  Mr Arun Kumar Dube (MARN: 9802677)

CASE NUMBER:  2100514

HOME AFFAIRS REFERENCE(S):          BCC2020/1330331

MEMBER:C. Packer

DATE:12 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2023 at 4.37pm

CATCHWORDS  
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Panelbeater – English language proficiency – ‘competent English’ – LIN 19/216 – exemptions revoked – failure to undertake a specified language test – serious, ongoing and irreversible harm – Ministerial Intervention requested – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2021 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 7 April 2020. 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 Panelbeater 324111. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not demonstrate competent English in the required way.

5. The applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

7. 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 LIN 19/216: cl 186.222. For visa applications made on or after 1 July 2017 the level required is competent English.

8. ‘Competent English’ is defined in reg 1.15C of the Regulations. 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.

   9.    For visa applications made on or after 1 July 2017 and before 16 November 2019, for the purposes of cl 186.222(b) (i.e. for applicants in the Temporary Residence Transition stream), the following class of person is specified:

   •          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.

9. But for visa applications made on or after 16 November 2019 there are no exemptions specified for cl 186.222(b) or 186.232(b): LIN 19/216. As this application was made on 7 April 2020 there is no exemption.

10. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005:

    F. for subregulation 1.15C(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

11. However, the applicant held a Republic of the Fiji Islands passport. This passport is not specified in IMMI 15/005 for the purposes of reg.1.15C(2).

    No English tests

12. The applicant did not undertake a specified language test in the three years preceding the visa application.

    14.      The Tribunal’s letter to the applicants dated 8 August 2023 discussed the foregoing information and stated ‘it appears that the primary applicant cannot satisfy the requirements of clause 186.222.’

13. The applicant’s response on 22 August 2023 included a submission that stated in part:

    Thank you for your letter dated 08 August 2023 requesting to provide information from the primary applicant Mr. Salend Jeet Singh.
    Brief history of visa applications:
    Class UC SC 457 visa
    Date of 457 visa application: 04 January 2016
    Date of 457 visa grant: 01 June 2016
    Trade occupation: Panel beater
    ANZSCO Code: 324111

    Class EN SC186 visa:
    Date of 186 visa application: 07 April 2020
    Stream: Temporary Residence Transition (TRT) stream
    Date of visa refusal: 15 January 2021
    Date of AAT review application: 18 January 2021
    …
    Synopsis below:
    Westwood Automotive offered the role with confirmation that they will support Mr Singh and his family in his permanent residency application
    Mr Singh clearly outlined at the time of his job offer that he does not do well with academic/general testing environment therefore he would not be able to sit a test. The employer carried out interviews with Mr Singh in person, followed by both general knowledge and face to face practical skills assessment by VetAssess. Clearly satisfied with both skills and communication ability, Westwood Automotive offered Mr Singh the role of a Panel Beater.
    The employer also sought advice and confirmed that the testing would not apply to him under the 457 transition to permanent employer sponsored visa.
    Mr Singh accepted the job offer and relocated with his family to Melbourne, Australia. Three of his children were all high school age at the time and one in College in American Samoa. Mr & Mrs Singh were satisfied that the children would have the opportunity for further studies and Mr Singh's career choice would not jeopardise the children's future.
    The new English proficiency requirements came into effect in November 2019 only a few months before the Singh's subclass 186 visa was lodged.
    Mr Singh and the employer urged the agent to lodge the visa on their behalf as Mr Singh was adamant that he cannot pass the English language testing. This testing setting was apparently the cause of much anxiety to Mr Singh during his school days.
    Westwood Automotive has provided an extensive statement to confirm that Mr Singh is a valuable and highly skilled tradesman who is able to discharge all requirements of his role over the last 5 years. The above exemption for English language testing remains available to subclass 187 however the employer is currently not a regional employer.
    The employer urges the Tribunal to consider that if Mr Singh has been an asset to both his business and the Australian economy over the last five years and successfully carried out his role, then he is surely capable to do the same for many years ahead.
    The employer is concerned that if Mr Singh is not granted the visa, the business will suffer unavoidable cost to find another overseas candidate who sometimes do not appear to be the right fit to their organisation. The automotive repair industry has KP ls from insurers which must be met to maintain their preferred repairer status. Losing a skilled panel beater like Salend Jeet Singh risks their business's continuity.
    Mr Singh had been employed in American Samoa, a US territory for over 18 years. He has worked and lived with English speaking communities for years without any difficulty.
    …
    Satisfying point 2 - Nominator continues to nominate
    This point is satisfied as per Nomination approval. Westwood Automotive also confirms this on the statement provided. The Nomination in the TRT stream applied on 26 March 2020, was approved on the 26 April 2021. This was specific to the Nominee and the occupation as a panel beater.
    At the time of the 186 visa application and before the Nomination application could be decided, the 186 visa application was refused.
    Both nomination and subclass 186 applications were submitted concurrently. Therefore, although the 186 visa application was refused on the 15 January 2021, the Nomination approval falls within the 6 months period the of approval and should therefore fall within r5.19 of the Regs.

    Satisfying point 3 - Nominator continues to provide employment to the nominee in the nominated position
    Refer statement provided by Westwood Automotive and 2 x recent payslips.
    The nominator will continue to provide Mr Salend Jeet Singh (nominee) employment under the nominated position referred to in the nomination application. Mr Singh is a highly valued employee of Westwood Automotive.

    Satisfying point 4 - Nominator's current status as an approved Standard Business Sponsor
    The Nominator's status as an approved Business sponsor is attached.

    Satisfying point 5 - Information regarding the primary applicant's income
    Notice of assessment for FY2022 attached. Income Summary attached for FY2023 has tax returns have not yet finalised.

    MITIGATING CIRCUMSTANCES - Unique circumstances Impact on the Family
    •         Although the Singhs were granted their 457 visa on 10 June 2016, their transition to Australia only came about in March 2018. The move was inhibited by completing employment responsibilities in American, schooling for 4 children deferments and plans to uproot the family from their home to Australia. This was not an easy task. Had the family made the transition from American Samoa to Australia the year the 457 visa was granted, this scenario would probably not have been necessary.
    •         The Singhs have lived in the US territory of American Samoa for almost 18 years amongst English speaking communities before relocating to Australia. Part of that decision to move to Australia was to keep the family unit together. Mr & Mrs Singh and their eldest daughter Neha Singh are all Fijian passport holders while the younger three children are all US passport holders. They moved to American Samoa for a better future for the family. Mr Singh only accepted the job offer as those opportunities were better in Australia for his family. The family has truly accepted Australian value and way of life.
    •         Affirmation of the delegate's decision would mean the family would have to relocate to Fiji after an absence of over 20 years. This poses a conundrum for the family as the family will be split in the following manner:
    o        Mr and Mrs Singh and eldest daughter Neha Singh will have to resettle in Fiji after their long absence as he no longer holds his working rights in American Samoa.
    o        Remaining 3 children on US passports may need to return to their country of origin being American Samoa.
    o        Mrs Shareen Singh does not have any close family members in Fiji as both her brothers reside in Australia. Mrs Singh's parents are deceased in 1993 and 2006, respectively.
    o        Salend Singh has been estranged from his family as he converted to Christianity and married outside his family religion of Hinduism. His only brother and mother are deceased in 2021 and 2022. An estranged sister remains in Fiji and an elder sister in New Zealand.
    o        Leaving Australia would effectively consign the family to other countries jurisdictions not familiar to them. There are strong family ties in Australia and the potential emotional, financial and logistical challenges that would arise if the family is separated.

    Employment reasons: Demand for Panel Beaters
    According to job Outlook, various sources also tell that there are about 16,100 jobs for panel beaters from the years 2018 - 2023. This accounts for 8000 openings in 5 years and 1600 openings every year. This data proves that there is an acute shortage of panel beaters in Australia.
    I have attached a letter from Salend Jeet's current employer Westwood Automotive which provides interesting reading. The letter provides strong and compelling reasons why the business desperately needs Sa lend Jeet' s services. The business has no issues with his work ethics and his communication skills in English.
    The visa applicant has been a model employee with Westwood Automotive, worked diligently, paid all his taxes as required by law and have had not run afoul of Australian law. He has kept his family together hoping that a pathway to permanent residency one day will allow his children to undertake further studies and give back to Australia by getting engaged in community services at all levels.

    Future prospects
    It is evident from the Salend Jeet' s stay in Australia that he has a clear plan to continue his current occupation with Westwood Automotive and build on his career opportunities within the company. His success will be a precedent for his family members to follow in his footsteps. To get the children to complete their education in Australia, get a decent job, work diligently and be successful in life. That would be his expectation from his family.
    Mrs Shareen Singh has been a long-term casual employee in the logistics industry throughout the pandemic and even today. She has been unable to convert to a permanent position due to her residency status. Mrs Singh has also enrolled in Cert IV in Disability support. She remains employed as she undertakes her studies.
    Neha Singh was also employed in the logistics industry during the pandemic. She has recently put her employment on hold to focus on her education (Cert IV in Disability Support). She plans to complete a diploma and a degree in the same field as she has a passion for community services.
    Nathan Singh is employed by Westwood as a trainee panel beater. Westwood Automotive will sign Nathan up on a formal apprenticeship on conclusion of their residency status. Nathan has developed well in his workplace having come from a family of tradesmen.
    Natanya Singh completed high school with hopes of enrolling into a registered nursing course. Due to their current residency status, the family is unable to afford education on non-resident tuition fees. Natanya is looking forward to commencing her education. Naileen Singh is completing year 12 this year and has already commenced cert II in community services through !vet Institute in Tullamarine to provide a pathway to further studies into a degree as soon as their residency issue is resolved.
    Mrs Singh and her daughters plan to remain in the same field and support the community through a small business setting when the opportunity arises.
    Good career opportunities will mean contributing positively to the Australian community both economically and socially. The Australia values are inculcated into all visa applicants from overseas and for those who strive to be good Australian citizens. The opportunities in Australia are endless. This is the land of opportunities for those who seek and are willing to work hard to achieve their dreams.

    Family unit cohesion:
    I rarely make entreaties on behalf of my clients to DHA or the AAT for special dispensation. After a long deliberation, I will consider this a passionate entreaty to the Member in view of the family's circumstances should they all have to depart Australia.
    Splitting a family due to Australian visa issues can have significant psychological, emotional and practical implications. In all probability it is always best to avoid such situations. This is probably the main reason why I have kindly requested the Member to assess if a recommendation to the Immigration Minister for his intervention is warranted.

    Please do consider the following for your referral assessment:
    Emotional well-being -family members especially children can experience anxiety, emotional distress and feelings of abandonment when separated from their loved ones. Maintaining a strong emotional family support can contribute to their long-term emotional well-being.
    Psychological support -long term separation can lead to depression, loneliness and other mental health issues. The absence of emotional support can exacerbate these challenges
    Stability and security -family support often provides stability and security. Separating families can disrupt this stability and exacerbate mental and emotional well being
    Cultural and social ties -family members contribute to maintaining cultural and social ties. Being separated from one's culture and support network can lead to a sense of isolation and loss of identity
    Community and social support - being part of a community and having access to social support networks can positively impact mental health and overall well-being where separation may hinder the ability to establish such connections
    Child development -children thrive in a stable and nurturing environment. Separating children from their parents can hinder their development, education affecting their overall growth and potential
    Financial implications - separation can lead to increased financial burdens as each household may need to independently cover expenses that were previously shared. In this unstable world today of increasing interest rates and goods and services, news that many households are struggling with rise in the costs of living
    Legal and Administrative challenges -managing legal, administrative and logistical aspects of maintaining households across different countries can be challenging, complex and time consuming
    Health and care support -family members can provide care and support during times of illness or hardship. Separation can make it difficult to access necessary care and assistance
    Integration and adjustment - the process of integrating into a new country can be better managed when family members are together. Separation can hinder the adjustment process and make it harder to build connections in the new community
    Legal and policy changes - immigration policies and regulations can and will change over time. A temporary separation may become permanent due changing visa rules making it harder for families to reunite in the future

    Conclusion:
    I submit this application under extenuating circumstances for a review of SC 186 visa application refusal for Mr Salend Singh and his family. Based on the history of the family and Mr Singhs careful acceptance of the job offer, relocating to Australia with now over 5 years of employment in the same role and support of his employer, I request the member to consider all evidence and explanation provided in favour of the business, Australian economy and this very real family unit. Mr Singh and his family would be endlessly grateful for the Member and/or The Honourable Minister's favourable consideration of their application. The family finds themselves in a very difficult position due to unintended and unforeseen circumstances beyond their control. The family assures the Tribunal that they continue to play their part in the Australian economy and society and continue to uphold and embrace the values of this great land.

14. A letter dated 29 August 2023 by Senior Pastor Jacob Kumar of Jalta Ruh Mission Church Melbourne discussed the positions of Miss Neha Singh and Mrs Shareen Singh as Ministry leaders in the Church. Other documents provided included:

    ·Concerning Miss Neha Saagrika Singh: Her enrolment in 2023 in a Certificate IV in Disability course

    ·Concerning Mrs Shareen Resmi Lata Singh: Her enrolment in 2023 in a Certificate IV in Disability course

    ·Concerning Miss Natanya Nishta Singh: Her completion in 2021 of some units towards a Certificate III in Allied Health Assistance

1. At hearing the applicant confirmed the family circumstances and details in their submission. The Tribunal indicated that it would make a referral to the Minister, and so did not need to talk to other witnesses.

2. In sum, the Tribunal has carefully considered the submissions concerning the applicants’ circumstances in Australia. However, the Tribunal is not able to waive the English language requirements. The applicant did not undertake a specified language test in the three years preceding the visa application and he does not satisfy the English language requirements.

3. Therefore, cl 186.222 is not met.

   Conclusion

4. The applicants have 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.

   Applicants’ request for section 351 referral to the Minister

5. The applicants have 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 applicants, if the Minister thinks that it is in the public interest to do so.

6. A submission dated 10 September 2023 addressed the Minister’s Guidelines and stated in part:

   • compassionate circumstances regarding the age and/or health and/or psychological
   state of the person that if not recognised would result in serious, ongoing and
   irreversible harm and continuing hardship to the person

   Mr & Mrs Singh are nearing 50 and their decision to uproot their family and move
   to Australia now means that their family unit may be split. They moved from
   American Samoa where Salend had lived and worked for over 18 years. 3 of the
   families 4 children were born and raised in American Samoa. These younger three
   who are US nationals would need to return to American Samoa as they are now
   over 18 years of age. To be able to stay in Fiji they must go through another round
   of applications to keep the family together after the distressing couple of years
   they have endured here in Australia. The family are aware of another family whose
   children were born in American Samoa, lived with their parents until they were 18
   in Fiji and returned to the US after they turned 18. Mr Singh's biggest concern was
   the future of their children and their education. He gave up his working visa in
   American Samoa and accepted the job offer in Australia as it provided a pathway
   to permanent residency. Mr Singh could not own land in American Samoa non-Samoan
   descents are not permitted land ownership due to scarcity. Mr Singh took
   the job offer as not only did he have better career opportunity in Australia but he's
   children would also have an opportunity to remain together and study further as
   his eldest daughter is a Fijian citizen. This is a very closely knit family that may
   need to be split due to immigration status in Fiji or in hope of a better future in the
   US. The family believed Australia provided that opportunity for the children. The
   eldest being Fijian citizen could remain in the same country with the younger
   children while pursuing their future growth. Mr Singh has lived in an English
   Speaking, US territory for 18 years and now lived and worked in Australia for over
   5 years. He has settled very well professionally and socially in the Australian
   lifestyle. Mr Singh suffers from anxiety of academic testing situation. Salend
   informed his boss that he is not academic and cannot sit tests or exams. Salend
   had completed 5 years of high school in Fiji with instruction in English. This
   provided him with an exemption for testing when he accepted the job offer. The
   rule still exists for regional jobs. …

   The Tribunal recommends referral to the Minister

7. The Tribunal has considered the applicants’ circumstances and a concise summary follows.

8. The applicant Mr Salend Jeet Singh and his family entered Australia on 19 March 2018 holding subclass 457 visas. He believed that when they applied for subclass 186 (Employer Nomination Scheme) visas in the Temporary Residence Transition stream, to work in the nominated position of Panelbeater 324111, he would be able to satisfy the English language exemption. That is, that he would be within the following class of person specified:

   ·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.

9. He provided documents from the Fiji Ministry of Education that showed he completed 5 years of secondary education in the Fijian Education system where all instruction was in English. These documents show that the applicant met the former English language requirement. However, on 16 November 2019 the exemption was revoked, so that there are no exemptions specified for subclass 186: LIN 19/216. As this application was made on 7 April 2020 there is no exemption.

10. The Tribunal has affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. However, if the applicants are required to depart Australia the family would be separated. The applicants Mr Salend Jeet Singh, Mrs Shareen Resmi Lata Singh and Miss Neha Saagrika Singh, are Fiji nationals and would be required to travel to Fiji. The applicants Miss Natanya Nishta Singh, Mr Nathan Nichel Singh and Miss Naileen Shanya Singh, are USA nationals (American Samoa) and would be required to return to, in their case, American Samoa.

11. The applicants submit, and the Tribunal acknowledges, that the prospective family separation would lead to serious, ongoing and irreversible harm and continuing hardship to the family members. The applicants circumstances appear to come within the Minister’s guidelines of ‘Unique or exceptional circumstances’ being:

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

12. The applicant has worked for over five years, and continues to work, for the sponsor Westwood Automotive as a Panelbeater and there is an approved nomination for the occupation of Panelbeater. The sponsor is keen to retain the applicant in light of the acute shortage of Panelbeaters in Australia. The applicant appears to meet the remaining visa requirements.

13. Other family members are well-established in the community:

    ·Mrs Shareen Resmi Lata Singh is enrolled in a Certificate IV in Disability course, and has worked in the logistics industry.

    ·Miss Natanya Nishta Singh has completed some units towards a Certificate III in Allied Health Assistance. She would recommence her studies after visa grant.

    ·Miss Neha Saagrika Singh is enrolled in a Certificate IV in Disability course.

    ·Mr Nathan Singh is employed by Westwood Automotive as a trainee Panelbeater and would be apprenticed after visa grant.

    ·Miss Naileen Singh is completing Year 12 and has also commenced a certificate II in community services.

14. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    C. Packer
    Member

    
    

    ATTACHMENT A

    MIGRATION REGULATIONS 1994 - REG 1.15C

    Competent English

    (1)  A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
    (b)  the person is an applicant for a visa; and
    (ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa--the test was conducted in the 3 years immediately before the date of the invitation; and
    (bb) for a person to whom paragraph (ba) does not apply--the test was conducted in the 3 years immediately before the day on which the application was made; and

    (c)  the person achieved a score specified in the instrument.

    (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.