Weerasinghe Mudiyanselage (Migration)

Weerasinghe Mudiyanselage (Migration) [2023] AATA 212 (3 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Nirosha Lakmini Weerasinghe Mudiyanselage
Mr Senithu Damithmal Siriwardena Weerasinghe Mudiyanselage
REPRESENTATIVE:  Mrs Amanda Jane Harris (MARN: 0958730)
CASE NUMBER:  1935509
HOME AFFAIRS REFERENCE(S):          BCC2019/5330580
MEMBER:De-Anne Kelly
DATE:3 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 03 February 2023 at 9:57am
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – position of Registered Nurse (Mental Health) – vocational English – English language test result – new policy implemented later than the time of application – impressive educational and professional achievements – Registered Nurse (Mental Health) employed by a regionally based healthcare facility – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 351
Migration Regulations 1994, Schedule 2, cls 186.222, 186.232, 186.311; r 1.15
National Vocational Education and Training Regulator Act 2011
Tertiary Education Quality and Standards Agency Act 2011
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 December 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 23 October 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). IMMI 17/058 exemptions.
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.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Registered Nurse (Mental Health) ANZSCO 254422.
The delegate refused to grant the visas because the applicant did not meet cl 186.232 of Schedule 2 to the Regulations because the applicant did not provide an English language test result at the prescribed level of attainment, did not have a passport from a specified country.
The applicants appeared before the Tribunal on 22 November 2022 to give evidence and present arguments.
The applicants were represented professionally in relation to the review by Mrs Harris who greatly assisted the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue is whether the applicant satisfies
186.232
At the time of application, the applicant:
(a) had competent English; or
(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
English language proficiency
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 a legislative instrument IMMI 15/005.
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.
‘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 F English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI15/005.
‘Competent English’ is defined in reg 1.15C of the Regulations. A person will have competent English 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.
IMMI 18/045 provides exemptions to ‘vocational English’ or ‘competent English’ requirements for applicants for a Subclass 186 visa or Subclass 187 visa as follows.
For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.
However, this exemption is not available to applicant for the direct entry 186 visa where they seek to satisfy cl 186.232.
The Tribunal has considered a new policy by the Department which was updated on 30 October 2022 as below.
PAM 3.4.11. English Language requirement[1]
[1] [Sch2Visa186 & 187] Permanent Employer Sponsored Entry – ENS and RSMS Visa Applications – Subclasses 186 / 187 (immi.gov.au)
Under clauses 186.222 and 187.222, at the time of application, the applicant must have competent English or was a person in a class of persons specified by the Minister in a legislative instrument.
Note:
·     There are no circumstances currently specified for this purpose in relation to ENS applicants – i.e. there are no English language exemptions for ENS applicants.
·     For RSMS applications, persons who, at the time of application, had completed at least 5 years of full-time study in a secondary or higher education institution where all the tuition was delivered in English, are exempt from this requirement.
3.4.11.1. Competent English - definition
As prescribed in regulation 1.15C, a person has competent English if:
·     they have undertaken a language test specified by the Minister in a legislative instrument within the three years immediately before the ENS/RSMS application was lodged, and achieved the score specified in the legislative instrument; or
·     they hold a passport of a type specified by the Minister in the legislative instrument.
Some test providers offer alternative versions of their tests that applicants can take at home or online, such as TOEFL iBT – Special Home Edition, OET@Home and IELTS Indicator. The Department does not accept any ‘at-home’ or ‘online’ test for Australian migration purposes. Tests accepted by the Department are listed in the legislative instrument.
For policy on assessing competent English – see: English proficiency and assessment.
Note: If a primary applicant provides details of a test result, decision makers can independently verify the identity of the primary applicant and the result through the relevant online verification system.

3.4.11.2. RSMS exemption – 5 years full-time study in English
Under policy, full-time study is considered to be:
·     in relation to secondary education, the standard number of contact hours that a student would undertake in the relevant country; and
·     in relation to higher education, the completion of at least three subjects in each semester or trimester of study.
Study completed in a higher education institution may include tertiary studies that lead to a higher education award as defined in the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA 2011 Act), including courses leading to awards/qualifications such as:
·     a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree;
·     a qualification covered by level 5, 6, 7, 8, 9 or 10 of the Australian Qualifications Framework;
·     an award of a similar kind, or represented as being of a similar kind, to any of the above awards; or
·     Vocational Education and Training (VET) courses (within the meaning of the National Vocational Education and Training Regulator Act 2011 as defined by the TEQSA 2011 Act).
The required total of five years can consist of full-time study at secondary (high-school) level or higher education, or any combination thereof.
The applicant must have undertaken all subjects, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English.
English language courses undertaken for the specific purpose of preparing for an English language examination, preparing for entry to an English language learning institution, or obtaining a particular English language test score are not acceptable for the purpose of the English language exemption.
There may be other circumstances where prior study in a secondary or higher education institution may be accepted. Decision makers should discuss other circumstances with their manager in the first instance.
The Tribunal has carefully considered this new policy and notes that it is not bound by policy especially policy that is implemented some years later rather than “at the time of application” as the legislation requires.
Nonetheless it will consider the policy and notes that the new policy only applies to Regional Sponsored Migration Scheme employer nomination visa subclass 187 applications and specifically excludes ENS subclass 186 visa applicants from the exemption as it states,
There are no circumstances currently specified for this purpose in relation to ENS applicants – i.e. there are no English language exemptions for ENS applicants.
For clarity ENS refers to subclass 186. The subclasses for Regional Sponsored Migration Scheme employer nomination visa subclass 187 and Employer Nomination Scheme ENS subclass 186 are defined in the regulations.[2]
[2] PART 1 - Permanent visas [item 1104AA to item 1118A] (immi.gov.au)
The new policy exemption does not apply to the ENS visa subclass 186 application that was made by the applicant and as such the Tribunal does not give it any weight.
The agent advised in the hearing that the applicant did not satisfy cl 186.232 and the information provided confirmed that the tests she had sat were in 2012 prior to the three years before the visa application was lodged or were in the period but the prescribed result was not achieved. The applicant holds a Sri Lanka passport which is not one of the prescribed passports to satisfy IMMI 15/005.
The applicant explained that she is a single mother and was advised that she needed 6.00 band in each element of an IELTS English test to apply for the visa, but she tried some 10 to 15 times and was so stressed she could not reach the prescribed results. She was approaching age 45 years and the cut-off for applying for a permanent visa and was very anxious and depressed and therefore lodged the application.
The Tribunal finds the applicant did not have competent English at the time of application and does not hold a prescribed passport and as such does not satisfy reg 1.15C and IMMI 15/005.
Accordingly, cl 186.232 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.
Mr Senithu Damithmal Siriwardena Weerasinghe Mudiyanselage was a secondary applicant on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.
186.311
The applicant:
(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
(b) made a combined application with the primary applicant.
The secondary applicant made a combined application with the primary applicant and applied as the child and therefore a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicant therefore does not satisfy cl.186.311.
The secondary applicant does not meet cl.186.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 186 visa.
Ministerial Intervention
The agent explained they acknowledged the application would fail but were requesting a referral for Ministerial Intervention. The Tribunal has considered the AAT Practice Guidelines and the Ministerial Guidelines on what matters should be referred to the attention of the Minister.
The Ministers Guidelines state as follows.
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
a)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, where at least one member of the family is an Australian citizen or Australian permanent resident.
b)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.
c)exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
d)circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
e)the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.
f)a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.
g)the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
Other relevant information
For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:
1)circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.
2)circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme.
3)whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations.
4)whether there are character concerns in relation to the person, particularly concerns related to criminal conduct.
5)information about a person’s history of compliance with Australian laws, including migration laws, such as:
a.any offence or fraud against the migration or citizenship legislation
b.any failure to comply with their visa conditions
c.any periods as an unlawful non-citizen in the community
d.their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents
6)details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
7)the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
The legal representative chose criteria c) as applicable to the applicant on the basis that the applicant is a mental health nurse. Criteria c) is shown below.
exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
It is noted that the applicant submitted an IELTS English test with score 6 or more points in each element and an overall band score of 6.5 which is Competent English however for the reasons given above the Tribunal cannot accept post application English tests as evidence to satisfy cl 186.232 however it is material to the question of whether the Tribunal should refer for Ministerial Intervention as it shows the applicant is competent in English which would contribute to her ability to undertake her professional work and to contribute to the community.
The applicant is a registered Nurse (Mental Health) with a Bachelor of Nursing 2012 from the University of Western Sydney and a Master of Public Health 2017 from the same university.
The agent has written the following in support of Ministerial Intervention.
She has impressive educational achievements, including a Master of Public Health and a Bachelor of Science in Nursing, both attained in Australia.
She has been consistently recognised by her employer for her outstanding achievements and performance, including Nurse of the Year in 2020 and certificates of recognition in 2019, 2021 and 2022.
She is a highly regarded Registered Nurse (Mental Health) and has been employed by Brisbane Waters Private Hospital (part of the Healthe Care group), a regionally based healthcare facility, since 2017.
She is a Registered Nurse with general registration with AHPRA. That body has a higher English language requirement for registration (Proficient) than that required of the visa subclass which she was refused on the basis of not having Competent English. She has been registered with AHPRA since 2016.
She holds a positive skill assessment from the Australian Nursing & Midwifery Accreditation Council (ANMAC), the appointed skill assessment authority for Registered Nurses.
Her employer has advised that she is a critical and valued member of the healthcare team at the hospital and would be very difficult to replace, were she unable to remain in Australia.
She has achieved the required English score since the visa application was lodged and is clearly fully competent. This is supported by the fact that she has undertaken 8 years of tertiary education in Australia, and has lived and worked here since 2007.

The letter from the applicants employer the Chief executive Officer of Brisbane Waters Private Hospital details her work with patients with mental health, mood disorders and drug and alcohol addictions and art of the Transcranial Magnetic Stimulation treatment. She is recognised as a superior clinical nurse and would be a huge loss to the hospital and to the community she serves.
Taking all this into account, the Tribunal considers the applicant provides an exceptional benefit through her registration as a Mental Health nurse to the Australian community and this case has features which require consideration of the Minister’s discretionary power under s.351 of the Act. As such it refers this case to the Department to be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
De-Anne Kelly
Member

[2023] AATA 212

3 February 2023

Key Legal Topics

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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