Zhou (Migration)

[2023] AATA 552

Zhou (Migration) [2023] AATA 552 (17 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anshun Zhou

REPRESENTATIVE:  Ms Zhemin Shen (MARN: 1388250)

CASE NUMBER:  2001261

HOME AFFAIRS REFERENCE(S):          BCC2019/2610228

MEMBER:De-Anne Kelly

DATE:17 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 17 March 2023 at 11:09am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – stonemason – English language proficiency – competent English – specified English test not undertaken – not exempted as specified passport holder or for completing five years of study in English – long residence, skilled work and workplace communication in English – request for referral for ministerial consideration – no unique or exceptional circumstances – possibility of making own request – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 360
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 9 January 2020 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 May 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Stonemason.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant had not undertaken a specified English test and did not have a specified passport and did not meet the exemption on English language requirements.

6. The applicant appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. This was a Multi Applicant Hearing List (MAHL) and the introductory remarks by the Tribunal were delivered to all the applicants on the list however following this each applicant had a private individual hearing. The Tribunal also received oral evidence from Mr Galante and Ms Huangjiao Wen, his partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by an “exempt person” Mr Dominic Galante and legal representative Ms Zhemin Shen.

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

   Procedural Matters

9. The hearing was originally set down for 23 November however a medical certificate was submitted stating the applicant had a tonsil infection and would be unavailable until 26 November 2022 and as such a postponement was granted to 30 November 2022.

10. The hearing was adjourned for 20 minutes until 10 minutes past the hour because of noise on the interpreter’s phone.

11. On a number of occasions, the Tribunal asked the applicant if the interpretation was clear and understood and this was confirmed as well as responses being in context which further indicated that the interpretation was sound and clearly understood.

    S359AA of the Act

12. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

13. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant satisfies cl186.222 which provides as follows.

    186.222
    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

15. 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 18/045.

16. 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.

17. ‘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.

18. 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 IMMI15/005.

19. The Tribunal took the applicant through the reason the delegate refused the application and then explained the requirements for either Competent English at the time of application or for an exemption.

20. Mr Anshun Zhou is a 53 year old Chinese national who migrated to Australia in 2011 to work as a Stone Mason on a 457 visa.

21. In the hearing it was established that the applicant had not undertaken a prescribed English test during the prescribed period prior to lodging the visa application.

22. He further advised that his passport was from China and therefore was not one of the specified passports from an English-speaking country.

23. The Tribunal considered whether the applicant satisfied IMMI 18/045 which provides exemptions to the ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa, as below.

    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.

24. The Tribunal will now rely upon the relevant legislation to determine the intent of IMMI 18/045.

25. It is noted that the Oxford English Dictionary Online defines institution and provider as follows,

    “Institution” - The action of instituting or establishing; setting on foot or in operation; foundation; ordainment; the fact of being instituted

    “Provider” - A person who or thing which provides or supplies something.

26. It seems that an institution is instituted and “in operation” in this case for higher education and could reasonably be said to be a providing or supplying higher education as a provider.

27. The applicant submitted information that he had only studied in Australia a Certificate III in Process Manufacturing for six months to 16 May 2013 which was likely delivered in English. Leaving aside the question as to whether the Wiseman Institute of Applied Learning at which the applicant studied was a higher education institution for the purposes of cl 186.222 it is evident that the applicant does not have a minimum of five years full-time study where all the tuition was delivered in English. Scant evidence of other study conducted in the medium of English was provided.

28. The Tribunal put to the applicant under s 359AA of the Act that he did not meet the criteria or the exemption in IMMI 18/045 in order to satisfy cl 186.222 and that it may be that it would be the reason to affirm the decision to refuse the visa application.

29. Mr Zhou responded in the hearing and gave an overview of his time and achievements in Australia and that he has no problem with communication and wants to contribute to Australia and with safety requirements at work. Mr Galante stated he would provide the applicant with English tuition. The partner Ms Wen stated that Mr Zhou had been in Australia for a long time and his English communication is sound and his work is no problem. She maintains it is harsh to expect him to meet English test and it would be unfair to refuse his visa as he has been working here for so many years.

30. Mr Zhou stated he has been trying to attain the English level prescribed but is unable to do so and he will provide training for Australian workers. He has always paid his taxes and asks for compassion on the part of the Tribunal.

    Post hearing.

31. Evidence was provided of the applicant working in Australia from 2011 and identity and associated documents. Ms Zhou made a submission stating he is a master mason from China and has worked continuously in Australia since 2011 and respects the country. He has engaged Mr Galante to enhance his English skills. He communicates well at work and has a partner in Australia. His job is of significance. Mr Zhou’s CV confirms that information as does his PAYG payment summaries and payslips. It is also noted that an employer Apex Stone has written a letter of support 30 January 2015 attesting to the high skill level of Mr Zhou and the difficulty in sourcing skilled stone masons. A letter 7 December 2022 from a CPA attesting to the applicant meeting his tax obligations.

32. A confirmation of enrolment for the applicant for an English language course in FY 2014. A submission from the legal representative 14 December 2022 restating his career and arrival in Australia and the fact that he has suffered from chronic silicosis from 2022 but hopes to return to work in early 2023 and has undertaken casual construction jobs to support he and his partner. They state he has worked to improve his English but is has been unable to achieve the prescribed scores for cl 186.222. The legal representative states that stone mason is a skill in short supply as evidenced by the Skills Priority List and that the applicant is eager to return to work with Apex Stone and to mentor a new generation of stonemasons. They ask the Tribunal to consider referring the applicant for Ministerial Intervention

33. 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.

34. 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.

35. 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.

36. 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)

37. 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. In any case the applicant has not provided evidence of the minimum of five years study in Australia which was conducted in English and therefore would not be eligible for this exemption even if it did apply to his visa subclass.

38. Therefore, cl 186.222 is not met as the applicant did not have competent English at the time of application being 19 May 2019 and does not meet the requirements for an exemption under the relevant instrument IMMI 18/045.

39. Therefore, cl 186.222 is not met.

40. 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.

    Ministerial Intervention.

41. The Tribunal will now consider the request that it refer the case for Ministerial Intervention and notes the following advice from the Minister.

    Cases that should be brought to my attention

    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.Trainer and on site and particular skills plasterer. Construction

    e.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.

    f.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.

    g.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.

    h.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.

1. The legal representative did not nominate criteria for a referral for Ministerial Intervention however the Tribunal considers that criteria a), b) and c) are the only obvious ones that may be applicable to the applicant. Criteria a) is shown below.

   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.

2. The applicant’s employer has not written a contemporary letter of support for the applicant and while the legal representative has stated that he can return to work in early 2023 following his silicosis there is no medical evidence to support this view.

3. There was scant evidence such as a passport or similar to show the previous employer is an Australian citizen however the Tribunal accepts that there is a prospective  Australian employer. The applicant is a valued tradesman and has been working for the employer for many years but there is scant evidence that he cannot be replaced by others or that he is able to return to work or will be able to mentor other junior employees. Taking all into consideration the Tribunal does not find that the employer’s situation amounts to strong compassionate circumstances that would result in serious, ongoing and irreversible harm and continuing hardship to the Australian citizen employer.

4. Ms Wen is apparently an Australian citizen or Australian permanent resident however scant evidence of this was provided nor was evidence of the circumstances of Ms Wen and whether she would suffer such that it constitutes strong compassionate circumstances that would result in serious, ongoing and irreversible harm and continuing hardship to the Australian citizen employer.

5. For the above reasons criterion (a) is not met for a referral for Ministerial Intervention.

6. Criteria b) is shown below.

   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.

7. The applicant has stated he wishes to remain in Australia however he provides scant evidence that he could not re-locate to China and he is a skilled person who speaks the language and has non-migrating family in China.

8. While a possible return to China would be disruptive for Mr Zhou it does not appear, it would result in serous, ongoing and irreversible harm and hardship to him. Taking all into consideration the Tribunal does not find this criterion is met for a referral for Ministerial Intervention.

9. Criteria c) is shown below.

   exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

10. The legal representative stated that the applicant has stone mason skills that are on the Skills Priority List and that he wishes to mentor and train young tradesman. While this is laudable, it does not confer an “exceptional” benefit. One would expect this of someone developing outstanding products or processes in their chosen field or to be in field where there is a significant public benefit to their services.

11. The length of time the applicant has been in Australia for 12 years and appears to have bonds in the community but again he has extended family in China, transferable skills and speaks Chinese. While this has been considered it is not compelling.

12. Taking all into consideration the Tribunal does not find this criterion is met for a referral for Ministerial Intervention.

13. The Tribunal finds that the applicant would prefer to stay in Australia, but it does not reach the threshold for a referral from the Tribunal to the Minister for Ministerial Intervention. However, it is noted that the applicant can make their own request for Ministerial Intervention if they believe they meet the eligibility criteria

    DECISION

14. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    De-Anne Kelly
    Member