Szilvasi (Migration)

[2024] AATA 3141

Szilvasi (Migration) [2024] AATA 3141 (20 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Janos Zsolt Szilvasi
Ms Anna Csilla Sarmai

REPRESENTATIVE:  Mr Walson Mathew (MARN: 1460591)

CASE NUMBER:  2316200

HOME AFFAIRS REFERENCE(S):          BCC2022/4595485

MEMBER:Amanda Mendes Da Costa

DATE:20 August 2024

PLACE OF DECISION:  Melbourne

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

The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s351 of the Act.

Statement made on 20 August 2024 at 9.10am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – welder –English language proficiency – competent English – long residence, work on another subclass visa and multiple language tests – overall score of 6.0 but not for every component – supporting statement from nominating business – skills, experience and mentoring of apprentices – skills priority list – no support networks and difficulty re-establishing life and work in home country – adult child a permanent resident – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 187.222

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 November 2022. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.222 of Schedule 2 to the Regulations because he did not have competent English at the time of the visa application.

6. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 31 July 2024 to give evidence and present arguments.

7. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicants, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments to the Tribunal.

8. At the commencement of the Tribunal hearing, the Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both them and their representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicants’ review.

9. The applicants were represented in relation to the review, with their representative also participating in the hearing. In making its decision the applicant has considered the information in both the Departmental and Tribunal files for the applicants.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requires of cl 187.222 of Schedule 2 to the Regulations.

    English language proficiency

12. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency or be in a class of persons specified in legislative instrument 19/216: cl 187.222. For visa applications made before 1  July 2017 the level required is Vocational English and for visa applications made on or after 1 July 2017 the level required is Competent English.

13. ‘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.

14. 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 15/005.

15. For the purpose of reg 1.15C, a specified passport is one issued by the United Kingdom, the United States of America, Canada New Zealand or Republic of Ireland to a citizen of that country.

    Background

16. Departmental records show that on 17 August 2023 the Department sent a letter to the applicant requesting further information demonstrating his competency in the English language.

17. On 30 August 2023, the applicant’s migration agent wrote to the Department explaining that the applicant had been in Australia for over 20 years since June 2003. The representative further explained that the applicant had:

    ·been on a subclass 457 visa most of his working days in Australia.

    ·undertaken over 15 IELTS tests since 2007 when English language tests became mandatory for certain visa holders.

    ·been unable to obtain the required result of 6.0 in each band during his 15 IELTS tests.

    ·not studied in English for five years and has been a metal trades person all his working life.

18. The two IELTS test results provided to the Department for the applicant[1] indicate the following results:

    [1] Test 21AU0123966SZIJ468G dated 12 March 2022 and Test 22AU000438SZIJ468G dated 23 April 2022.

TEST	21AU012966SZIJ468G	22AU000438SZIJ468G
Listening	6.0	5.0
Reading	5.5	5.5
Writing	5.0	5.5
Speaking	6.5	7.0
Overall Score	6.0	6.0

1. The Tribunal further notes that the applicant provided the Department with a letter of support (dated 30 August 2023) from his nominating business which states:

   I have worked with Janos for three years and have found his English skills to be at intermediate level, superior to some native English-speaking employees in our workplace. Janos communicates effectively in the workplace and his interactions with management are professional and easily understood. We do not have any concerns about Janos’ English reading, writing or comprehension skills[2].

   [2] Letter authored by Lisa Lamond, General Manager of Corporate Services, Alfabs Group.

2. The applicant also provided a Certificate III in Engineering and Fabrication Trade obtained by him in Australia by the Intech Institute of Technology dated 17 September 2021.

3. However, as the applicant did not obtain a test score of at least 6 in each of the four test components of Listening, Reading, Writing and Speaking, the delegate found that he did not have the prescribed level of Competent English and therefore did not meet the requirements of cl 187.222.

   Applicant’s written statement

4. The applicant provided the Tribunal with a written statement (dated 29 July 2024) which may be summarised as follows:

   ·He has been living in Australia with his wife and son for nearly 22 years.

   ·He is employed as an Engineering Fabricator (Boiler Maker) and is a tradesman and not an academic.

   ·His employer has provided a statement declaring that the applicant’s English language skills are at an intermediate level.

   ·Although he has taken 13 English language tests, he has been unable to meet the required score of six across all four components for Competent English.

   ·Given that he has lived in Australia for many years and has a son who is a permanent resident, he seeks to be exempted from the English language requirements for the visa.

5. The applicant has also provided a Certificate Level III qualification which shows that he has fulfilled the requirements for Engineering Fabrication Trade, issued by Intech Institute of Technology on 17 September 2021.

   Applicants’ evidence at the hearing

6. The applicants are nationals of Hungary. They came to Australia with their son (then aged nine years) after the applicant answered an advertisement in Hungary for a job in Australia. They have lived and worked in Australia for over 20 years and their son has been educated her. He is now a permanent resident and lives and works in Melbourne.

7. The applicant has worked as an Engineering fabricator throughout his residence in Australia and has been employed in the role by his current employer (Alfabs Engineering) for the past eight to nine years. The second named applicant was the primary carer for their son and is currently employed for a national distributor of goods and a food preparation business.

8. Each of the applicants has paid all required income tax on their incomes in Australia and part from a drink driving offence committed by the applicant in 2004, they have no criminal history in Australia.

9. The applicant experiences no difficulties in communicating with his fellow employees and employer. Nor does he have any problems in completing necessary documentation including vehicle registration, securing insurance, paying household bills, and reading necessary material for his work.

10. The applicant has a sister and his mother living in Hungary but has no friendship or support networks in Hungary. Given his age (50 years) the applicant is concerned that he will not be able to secure employment if he returns to Hungary and that it will be very difficult for him and the second named applicant to re-establish themselves financially and socially in that country.

    Evidence of Janos Szilvasi Junior at the hearing

11. Mr Szilvasi Junior is the son of the applicants. He told the Tribunal that his parents are honest and hardworking people who have made a commitment to living and working in Australia for over 20 years.

    Findings

12. The Tribunal accepts that the applicants have been living in Australia for approximately 22 years in which they have raised their son (now an adult) and the applicant has worked as an Engineering Fabricator. The Tribunal is further satisfied that the applicant is a valued employee and despite his inability to achieve the required score in his English language tests he has been able to communicate easily with his fellow employees and is considered by his employer to have English language skills at an intermediate level.

13. The Tribunal notes that the applicants did not require an interpreter during the hearing and the Tribunal was able to converse easily with the applicant and had no difficulty in understanding his responses.

14. However, based on the evidence before it (including the oral evidence of the applicant) , the Tribunal is not satisfied that the applicant has achieved the specified score in a specified test in the three years before the application.

15. A copy of the biodata pages of the applicant’s passport (contained in the Department’s file) show that the applicant is a citizen of Hungary. This was confirmed by the applicant in his evidence at the hearing. The applicant therefore is not in a specified class of exempt applicants.

16. Therefore, cl 187.222 is not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

18. Given its findings regarding the applicant, the Tribunal is not satisfied that the second named applicant meets the secondary requirements for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa.

    Ministerial Intervention

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. In support of the applicant’s request, they have provided a letter of support dated 13 August 2024 by Mr Kris Mitchison and a bundle of support letters from friends and members of their local community.

21. Mr Mitchison is the Senior Workshop Supervisor of Alfabs Engineering and the applicant’s supervisor since 2017. In his letter, Mr Mitchison describes the applicant as an exceptionally skilled welder who can interpret technical drawings, execute works unsupervised and work as art of a team on larger projects.

22. Mr Mitchison notes that the applicant has mentored many of the company’s young apprentices and has taught them the fundamentals of boiler making and welding. He further notes that the applicant has been integral in training some of the company’s tradesmen in Sub arc welding which has enable Alfabs Engineering to executes works on a large er scale, including government projects at Sydney Central Station, Sydney Light Rail, Bankstown Station, and Doonside Train station.

23. Mr Mitchison states that he has no hesitation in recommending the applicant for any boiler making position.

24. In their letters of support, the applicants’ friends, and members of their local community attest to the valuable contribution they have made to the Australian community over the past 22 years.

25. The Tribunal notes that the occupation of Boilermaker-Welder (which is a specialisation of the occupation of Metal Fabricator, ANZSCO 322311) is on the Skills Priority List published by Jobs & Skills Australia.

26. The Tribunal accepts that the applicant is a highly skilled and experienced tradesman in an occupation which is a valued and much needed one in Australia. The Tribunal is further satisfied that the applicants have lived in Australia for 22 years where they have worked, paid income tax, and raised their son. If their visas are not granted, the applicants will return to Hungary where they are likely to experience significant hardship in re-establishing themselves both personally and in relation to employment. They will also be separated from their son (who is their only child) who is an Australian permanent resident.

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

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

29. The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s351 of the Act.

    Amanda Mendes Da Costa
    Member