Call for visas to serve up chefs


STRICT English language requirements for foreign workers are being reviewed as the Immigration Department negotiates a new labour agreement for the hospitality industry

The department is evaluating an industry request to fast-track thousands more foreign chefs and cooks on temporary work visas.

Separately, the department is considering lowering the existing requirement for 457 visa workers to have “functional ­English’’, as part of a government-ordered inquiry into the temporary work scheme.

Restaurant and Catering Australia chief executive John Hart yesterday revealed the hospitality industry wants the agreement to extend 457 visas to cover waiters and bar staff, as well as skilled chefs and managers.

The industry also wants to waive English language requirements and axe the $53,900 minimum salary.

Mr Hart said foreign workers should be paid the same award rates as Australian staff. And he said kitchen staff did not need to speak English.

“The reality is that most of the people coming into the business are cooks and chefs and many of the kitchens, especially in the ethnic cuisine, don’t use English at all,’’ he said. “The language of the kitchen is the language of the cuisine. It is not appropriate to set the bar so high where there’s no requirement for English in the workplace, particularly with cooks and chefs.’’

Mr Hart said the industry needed to recruit 3500 more chefs and cooks because of a shortage of local labour.

Restaurateur Philip Thompson, who owns the Sydney Cove Oyster Bar, said he had sponsored two chefs and two managers on 457 visas, and relied heavily on backpackers and foreign students to staff his popular Circular Quay eatery.

Mr Thompson said he paid award wages, but still could not find suitable Australian workers.

Only three of his 40 staff, including the head chef, were Australian. He has hired seven Italian waiters — “they’re fantastic and really understand service’’ — but backpacker visa rules prevented him employing them for more than six months.

“It’s not seen as a profession in Australia — it tends to be a part-time job for people to put themselves through uni — but a lot of the overseas people see it as a profession,’’ Mr Thompson said.

His general manager is Indonesian Dimple Nanikram, who first came to Australia from Bali to study business management.

She said Australian jobseekers did not want to work weekends, even though they were paid time and a half on ­Saturdays and double time on Sundays.

The restaurant’s floor manager is 27-year-old Turkish woman Hasrel Talus, who worked for years in international hotels and restaurants in Istanbul before moving to Australia to study English.

“We have 200 resumes at the moment and there is not one Australian one there — they are all from overseas,’’ she said yesterday.

“I love working here; you can’t complain working every day in front of the Harbour Bridge.’’

Judges air concerns about English tests in visa cases

THE Federal Court has seized on the use of English language tests by immigration authorities as potentially unfair.
In a decision this month involving an Indian-born graduate from the University of New England, Justice Nye Perram said the court had noticed something puzzling in a number of cases.

Judges air concerns about English tests in visa cases

THE Federal Court has seized on the use of English language tests by immigration authorities as potentially unfair.
In a decision this month involving an Indian-born graduate from the University of New England, Justice Nye Perram said the court had noticed something puzzling in a number of cases.

There was “a disjunct between the apparent ability of [former overseas students] in skilled migration visa appeals to conduct their own cases in fluent English, on the one hand, and the operation of the [International English Language Testing System] test which deemed them not able to speak competent English at all, on the other”.

Justice Perram began his judgment by recalling the 1934 attempt to deport the communist Egon Kisch by setting him a dictation test in Scottish Gaelic, a device used to apply the White Australia Policy.

“Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting,” the judge said.

However, he conceded that today’s immigration authorities had a legitimate concern about English proficiency and said IELTS was not “a discreet tool for the implementation of concealed policies”.

To make sure the legal issues were properly argued, the Indian graduate, Dushyant Manilal Parmar, was given a court-appointed barrister, Kellie Edwards.

Mr Parmar had taken more than 10 IELTS tests but could not get the score needed for a skilled migration visa.

His challenge to the visa refusal failed and Justice Perram said the court could not set itself up as an arbiter of English proficiency.

“It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order,” he said.

In a separate challenge rejected the same day, Justice Perram expressed sympathy for the litigant, Sardar Khan Ghori, another Indian-born graduate of UNE.

Mr Ghori had taken the IELTS test five times but had not managed to get the reading and writing scores needed for his skilled graduate visa.

Justice Perram expressed a “natural sympathy” for him, especially given “the fact that his English appears to have been sufficient to obtain a Masters of Information Systems with Honours from [UNE in 2008]”.

Mr Ghori had wanted time to sit another IELTS test.

In a third case last December, Justice Robert Buchanan had no choice in law but to reject an appeal by an Egyptian-born man, Moemen Rady Abdelnaeim Mohamad, who had Australian qualifications in commercial cookery, tourism, hospitality and business.

Mr Mohamad had taken 18 IELTS tests. For his visa he needed a score of at least five in each of the speaking, listening, reading and writing components.

He had attained that score in each component — but never in the one test.

Justice Buchanan said there was a very real possibility “that the test result process yields a false result in the case of the appellant, due to his inability to cope well with an examination environment.

“The possibility of practical injustice was revealed starkly at the hearing of this appeal.

“The appellant appeared for himself, without the aid of an interpreter. He had no difficulty expressing himself and reading from notes.

“Were it a matter for me I would have no hesitation in pronouncing him capable of speaking, reading and understanding English to an acceptable everyday level.”

In the Parmar case, Ms Edwards said the immigration rules meant that an IELTS test was just one way to prove competent English.

But Justice Perram said the rules clearly made IELTS the only proof of English.

Ms Edwards also argued that the design of the test showed that an overall score of six was enough to show competent English.

(The immigration rules required a score of at least six in each of the four elements of the test: speaking, listening, reading and writing.)

Justice Perram rejected this argument, too, saying the rules made careful use of an internationally accepted test to set up a hierarchy of proficiency in English.

And judges listening to apparently fluent litigants could not substitute their own opinion about proficiency, he said.

Ms Edwards’ final argument was that by relying on the IELTS organisation, the government had put decisions about English proficiency beyond the reach of judicial scrutiny but Justice Perram said there was no problem with this arrangement.

The Department of Immigration and Citizenship pointed out that it had won the cases and no legal error was found in the decisions under challenge.

Alternative English Language Tests for Student visas

On 20 May 2011 the minister announced that the Test of English as a Foreign Language (TOEFL), the Pearson Test of English Academic (Pearson) and the Cambridge English: Advanced (CAE ) from Cambridge ESOL (Cambridge) would also be acceptable tests for Student visa application purposes.

Chris Bowen retreats in the face of Marcos Berenguel ruling

MMIGRATION Minister Chris Bowen has abandoned his attempt to limit the fallout from a High Court decision that helps foreign students win skilled migration visas.

In the case of Brazilian graduate Marcos Berenguel last March, the High Court overturned the refusal of a permanent residency visa.

The Department of Immigration and Citizenship had failed to take into account Mr Berenguel’s up-to-date English test results because of an absurd and unfair reading of the rules, the court said.

Lawyers said the case could help thousands of overseas students already in the queue for skilled migration, a visa category the government has tried to reform following a student-driven blow-out.

Federal magistrates went on to apply the Berenguel ruling to other visa categories, prompting the minister to launch Federal Court appeals to try to limit the fall-out.

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Last week, Mr Bowen discontinued an appeal in the case of Ratan Kumar Banala. The week before, an appeal in the case of the Habib family was discontinued. A full bench of the Federal Court had been due to hear the Habib appeal last Wednesday.

A departmental spokesman cited legal advice as the reason and confirmed the minister no longer had any Berenguel appeals on foot.

Sydney immigration lawyer Peter Bollard said: “It shows that the ripples of Berenguel are still spreading out and it will be good news for a lot of people who were sweating on the outcome [of the appeals]“.

In the Berenguel case, the department refused to accept an English test result that came in after his application for permanent residency as a skilled migrant. Under the rules, Mr Berenguel had to show results from “a test conducted not more than two years before” the visa application.

But there was hot demand for an International English Language Testing System test and Mr Berenguel could not book an exam until a month after his visa application.

The High Court said the rules simply meant he had to show “recent competency” in English.

The case has created a boom in retesting because there are delays between visa application, a decision by the department and any review by the Migration Review Tribunal. Under the Berenguel ruling, former students can take tests right up to a tribunal hearing.