N04/03945 [2005] MRTA 785 (1 July 2005)

1. Mr Isaac Bishara (the review applicant), the brother of the primary visa applicant, and his wife Mrs Irini Bishara lodged applications for review with the Tribunal on 13 July 2004. The Tribunal will treat Mr Isaac Bishara as the review applicant as he is the person who holds the prescribed relationship with the primary visa applicant. The decisions are reviewable by the Tribunal and the applications for review were properly made, and combined at lodgement, by a person with standing to apply for review.

1. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
2. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
3. Generally, where members of the same family unit have applied for visas together, at least one of the visa applicants must meet the 'primary criteria' for the visa. The other applicants need only meet the 'secondary criteria'.
4. The criteria and policy immediately relevant to this review are:

Part 138 of Schedule 2 to the Regulations

Part 139 of Schedule 2 to the Regulations

GN 15, 17 April 2002 - Specification of skilled occupations and relevant assessing authorities for the purposes of regulations 1.03 and 2.26B

GN 34, 29 August 2001 - Designated areas for the purpose of item 6701 of Schedule 6

Repatriation Commission v. Gorton [2001] FCA 1194; (2001) 110 FCR 321

1. Item 1128B of Schedule 1 to the Regulations requires that an application for a Skilled-Australian-Sponsored (Class BQ) visa be accompanied by satisfactory evidence that a 'relevant assessing authority' has assessed the skills of the applicant or of the applicant's spouse, for their nominated skilled occupation. Regulation 1.03 provides that 'relevant assessing authority' means a person or body specified under regulation 2.26B.
2. The applicant has made claims against subclass 138 Skilled Australian-Sponsored, but will also be assessed against subclass 139 Skilled Designated-Area Sponsored.
3. Regulation 138.214 requires that the applicant is less than 45 at the time of application.
4. Clause 138.215 requires that the applicant nominate a 'skilled occupation' at the time of their application for a visa. 'Skilled Occupation' is defined in regulation 1.03 as an occupation specified by Gazette Notice. This list is changed from time to time. The later Gazette Notices do not state in express terms or by clear implication how they are to apply to applicants whose applications are yet to be finally determined, each Gazette Notice simply 'revokes' the former notice. The Tribunal will therefore apply the Gazette Notice in force at the time of application in accordance with the applicant's accrued rights. Following the principle set down in Repatriation Commission v. Gorton [2001] FCA 1194; (2001) 110 FCR 321 the Tribunal will also apply the Gazette Notice in force at the time of its decision where this notice is of benefit to the applicant.
5. Subclause 138.216(1) requires that the applicant has been employed in a skilled occupation for a specified period of time immediately before the day on which the visa application was lodged ('the work experience requirement'). The period of employment required varies with the points specified in the Gazette Notice for the nominated skilled occupation. Subclause 138.216(2) provides an exemption to the work experience requirement for applicants who had achieved certain awards from Australian educational institutions in the 6 months immediately before lodgement of the visa application.
6. At the time of application the clause 138.216 read as follows:

(1) Subject to subclause (2), the applicant has been employed in a skilled occupation:

(a) if 60 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or

(b) if 40 or 50 points are specified by Gazette Notice as available for the skilled occupation nominated in the application - for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.

(2) Subclause (1) does not apply to an applicant if:

(a) each of the following subparagraphs applies in relation to the applicant:

(i) the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of at least 2 years of full-time study at that institution while the applicant was present in Australia;

(ii) the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application;

(iii) all instruction for that degree, diploma or trade qualification was conducted in English; or

(b) each of the following subparagraphs applies in relation to the applicant:

(i) the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of less than 2 years of full-time study at that institution while the applicant was present in Australia;

(ii) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, while the applicant was present in Australia;

(iii) the 2 or more degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) were completed as a result of a total of at least 2 years of full-time study while the applicant was present in Australia;

(iv) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was completed at the institution at which it was commenced;

(v) each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) is relevant to the skilled occupation nominated by the applicant in his or her application;

(vi) all instruction for each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was conducted in English.

1. Clauses 138.225A and 138.225B were inserted in subclass 138 (Skilled Australian-sponsored) by Statutory Rule No. 86 of 2002 (SR of 2002). Clause 138.225A requires that the applicant must also satisfy the work experience requirement at the time of decision, subject also to the exemption for applicants who hold certain Australian awards. Clause 138.225B limits the employment undertaken by an applicant while in Australia that may be taken into account for the work experience requirement at the time of decision. Transitional provisions specify that the change applies to all applications made but not finally determined before 1 July 2002 or made on or after 1 July 2002.
2. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

1. What is recorded there can be rendered as follows. The application that is the basis for this review was lodged on 16 September 2003. The primary visa applicant was sponsored by Mr Isaac Bishara.
2. The primary visa applicant did not nominate a skilled occupation on the visa application form. The spouse nominated Translator [ASCO Code 2529-15] as their skilled occupation on the visa application form.
3. The basis for the refusal of the visas in this matter was that the spouse failed to meet clause 138.216 as he did not have the required period of employment in a skilled occupation immediately before lodgement of the visa application. The provided work references were thought to be false.
4. As will be discussed below, the issue for this review is whether or not the spouse of the primary visa applicant is able to show that he was employed for at least 12 months in the period of 18 months immediately preceding the application (in other words during the period between 15 March 2002 and 15 September 2003).
5. The spouse stated in the application form that he was employed as a translator from July 1998 At Ain Shams University and as an English teacher from 1999 employed by El Sahel Department of education, Cairo. In support of these claims the spouse provided the following documents:

• Provisional certificate, dated 13 September 2002, from Ain Shams University, signed by Officer in charge, Dean of Faculty and Faculty Register, stating that the spouse began his work in the translation section in July 1998.
• An undated work reference from Directorate of Education in Cairo - El.Sahel Department of Education, signed by the Head of Department, stating that the spouse was employed as a "Prepatory" school teacher from 20 March 1999.
• Certificate of experience, signed by 4 officers from El-Sahel Department of Education in March 2004. It states in part as follows:

Having checked the service file pertaining to Mr. Sameh Ballamon Zekry Bashir holding the position of a "Teacher of English Language", hi particulars turned out to be as follow:

• A statement of particulars, signed by 3 different officers from El-Sahel Department of Education on 25 March 2004, stating that the spouse has 5 years experience.

1. The above references were not made on an official letter head. On 20 April 2004 the spouse stated in an e-mail correspondence to the Department that:

Unfortunately the government and Public Service departments in Egypt have too many sub departments to make a different letter head for each one. Therefore there are no telephone numbers on the letter head.

The e-mail then provided the phone number of the General Manager of El-Sahel Department of Education.

1. According to the decision record a Departmental officer conducted checks on the provided work references. Representatives from Ain Shams University confirmed that the names and signatures on the provisional certificate were not authentic. Also representatives from El Sahel Department of Education confirmed that the signatures on the work reference were not genuine and that they had not issued the work reference. This was why the delegate was not satisfied that the spouse held any work experience in a skilled occupation during the relevant period. However checks at this time established that the material supplied confirming that the spouse obtained an Arts degree for South Valley University Sohag was authentic.
2. In a statement submitted to the Tribunal with the application for review the review applicant stated that there had been a misunderstanding concerning why the reference from Ain Shams University was submitted:

...with regard to the reference from Ain Shams University - this reference was in relation to a (part time) job that Sameh had at the University but not for the university - He was not on the payroll - he used to help teachers and students translate notes - This reference was requested at a time before his application for a visa, and was for the sole purpose of his resume, it was given to him by one of the teachers that he helped on occasion.

The reference from El Sahel was requested for the sole purposes of the visa application and should have been found OK. I don't know how this was investigated but as you can see from the payslips he is in fact employed by them.

1. The review applicant was sent a letter on 28 February 2005 inviting the review applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decisions under review. The review applicant provided comments in a letter dated 20 March 2005. Material was supplied to support the claim that the spouse has been employed as primary school teacher from 20 March 1999 to the present. This includes documents in Arabic and English from the El-Sahel Department of Education personnel affairs and salaries Departments and also letters from the Galal Fahmy Technical School. There is letter dealing with the spouse's pay from this school.
2. The Tribunal notes that a s375A certificate was placed on three folios on the file. One of these folios contained the detail as to what the Department checks revealed. No doubt such a procedure protects an interest of the Department. But a certificate that binds the Tribunal member to not disclose the information it contains to any other person, does not allow the Tribunal review to fully explore these matters.
3. A hearing was held on 20 May 2005 and oral evidence was given by Isaac and Irini Bishara (the review applicant and his wife). It was said that the visa application was puit together in a hurry as the spouse of the primary visa applicant would soon be 30 years old. And they wanted to get the benefit of maximum points for age. The reference from the El Sahel Department of Education that was put in with the visa application was signed by the former principal of the school and the spouse's supervisor. A further four documents supporting the claim that the spouse worked over the relevant period and still works as a teacher have been provided to the Tribunal. A certificate of experience has been signed by the file clerk, personnel manager and manager of financial and administrative affairs of the El-Sahel Department of Education; and this document has been approved by the General Manager of the Department, Rabie Mansour.
4. After the hearing the Tribunal contacted the General Manager of the Department, Mr Rabie Mansour. He was sent a copy of the document he is said to have approved. He confirmed that the document that has his signature on it is genuine.

1. At the time the visa applications were lodged, Skilled - Australian-sponsored (Migrant) (Class BQ) contained the following subclasses: subclass 138 (Skilled - Australian-sponsored) and subclass 139 (Skilled - Designated Area - sponsored). The Tribunal has considered the applicants against the criteria for both subclasses.

Assessment of the applicants against the criteria for a subclass 138 - Skilled - Australian Sponsored

1. First, the Tribunal notes that clause 138.217 is relevant to this review as it provides the authority for a spouse to be assessed instead of the primary visa applicant. At the time of application, this clause read as follows:

138.217 If the applicant does not satisfy the criteria in clauses 138.214, 138.215 and 138.216 but it appears, on the basis of information provided in the application, that the applicant will satisfy the criterion specified in clause 138.225 if regulation 2.27A applies, the applicant's spouse is an applicant for a Subclass 138 visa who satisfies the criteria in clauses 138.214, 138.215 and 138.216.

1. The Tribunal notes that a formal points assessment has not been conducted by the delegate. The primary visa applicant has not nominated a 'skilled occupation' in the application for the visa and as such she is not able to score sufficiently highly on the points test to achieve the pass or pool marks. However it appears on the basis of the information attached to file that the primary visa applicant would satisfy clause 138.225 if her spouse's scores are taken into account under regulation 2.27A. In these circumstances in accordance with regulation 138.217 the spouse of the primary visa applicant would need to satisfy the criteria contained in clauses 138.214, 138.215 and 138.216.

Does the spouse satisfy the criteria in clause 138.214?

1. The spouse has provided evidence in the form of his birth certificate which indicates that he was born on 7 September 1974. As he was 29 years of age at the time of application, he meets clause 138.214.

Does the spouse satisfy the criteria in clause 138.215?

1. The spouse's nominated occupation of Translator [ASCO Code 2529-15] is a skilled occupation under the relevant gazette notice (GN 15 of 17 April 2002). The spouse therefore meets clause 138.215.

Does the spouse satisfy the criteria in clause 138.216?

Does the exemption from the work experience requirement apply (subclause 138.216(2))?

1. The Tribunal must first consider whether the spouse is exempted from meeting the work experience requirement on the basis of an award by an Australian educational institution (clauses 138.216(2))
2. There is no evidence to suggest that the spouse has met the requirements of an award from an Australian educational institution. Nor has the spouse made claims in this respect. As the spouse does not meet subclause 138.216(2) the spouse must meet the work experience requirement.

1. The spouse nominated Translator as his skilled occupation on the visa application form.
2. The occupation nominated by the spouse is a skilled occupation listed in the Gazette Notice in force at the time of application. The number of points specified for the nominated skilled occupation is 60.
3. As 60 points are specified in the Gazette Notice for the nominated skilled occupation the spouse must have been employed in a skilled occupation for a period of, or periods totalling at least 12 months in the period 15 March 2002 to 15 September 2003.
4. In the processing of this matter it was initially thought that the spouse was relying upon work as a translator with Ain Shams University from July 1998 to the date of application. There was some reason to think this as these details appear in the application form for the visa. However I accept the explanation given by the review applicant that in fact these details were given merely to support the claim that the spouse had worked as a translator. It is said that this information was requested by the original officer handling the file. This work at Ain Shams University was unpaid work and while done at the University was not performed for the University.
5. As unpaid work, of course, it does not come within the definition of "employed" as set out in subregulation 2.26A(7). This work has no relevance when considering clause 138.216.
6. The spouse claimed in the application form that he had worked as an English teacher for the El-Sahel Department of Education from March 1999. And was still doing this work at the date of the application for the visa. And more recent documents state that he continues to hold this position. .
7. A file note, covered by a s 375A certificate discusses checks made by a Department officer concerning the claim that the spouse worked as a school teacher.
8. The review applicant has now supplied further documents (translated) to support the claims made by the spouse as to his work experience as a teacher. The authenticity of the document signed by the general manager - Rabie Mansour - has been checked by the Tribunal. I am satisfied on the material before me that the spouse has worked as a teacher for the El-Sahel Department of Education from March 1999 to date.
9. The occupation of school teacher is specified as a skilled occupation in the Gazette notice in place at the time of primary assessment (SGN 170, 20 May 2004). For completeness I note that this occupation remains as a skilled occupation in the two subsequent Gazette notices (GN 36, 8 September 2004, SGN 55, 1 April 2005) although it is not on schedule A of the last mentioned Gazette notice.
10. It follows that I am satisfied that the spouse satisfies the work experience requirement set out in clause 138.216. And it follows that I find that the spouse satisfies the similar work experience requirement set out in clause 138.225A.. However as I am not in the position to decide all the matters set out in clause 138.228 I make no specific finding with regard to clause 138.225A..

Assessment of the applicants against the criteria for a subclass 139 Designated Area - Sponsored visa

1. For completeness the Tribunal has also considered whether the applicants are entitled to Subclass 139 visas. One of the criteria for Subclass 139, is that the sponsor must reside in a 'designated area' at the time of application and decision. At the time of application, the sponsor lived in Campsie, NSW, postcode 2194. The list of designated areas as set out in the Commonwealth Gazette GN 34, 29 August 2001 does not include this postcode. The sponsor continues to live in Campsie. The Tribunal notes that no further Gazette Notices have been published in respect of designated areas.
2. On the basis of this evidence, the Tribunal finds that none of the applicants meet prescribed primary criteria for the grant of a Subclass 139 visa, that is, subclauses 139.213 and 139.222.
3. Given the findings made above, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for the visas. The Tribunal is not in a position to decide the remaining criteria.

1. The Tribunal remits the applications made by the visa applicants for Skilled - Australian-sponsored (Migrant) (Class BQ) visas to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the primary visa applicant satisfies the following criteria for the grant of a Subclass 138 Skilled (Australian Sponsored) visa: