1415344 (Migration)

[2016] AATA 3231

1415344 (Migration) [2016] AATA 3231 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MAYUMI NAKAZAWA

CASE NUMBER:  1415344

DIBP REFERENCE(S):  BCC2013/570897

MEMBER:Rania Skaros

DATE:4 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 February 2016 at 1:59pm

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 Immigration on 4 September 2014 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 17 April 2013. 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 (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 Agreement stream.

4. In the present case, the applicant sought the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Registered Nurse (Aged Care) 254412. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa in the TRT stream because the applicant did not meet cl.186.223(1)(a) of Schedule 2 to the Regulations because the position to which the application relates was not a position nominated in an application for approval that sought to meet the requirements of sub-regulations 5.19(3). In this case, the nomination was approved under the Direct Entry Stream (DEN). The delegate, in referring to the Departmental policy, noted that the applicant can only be assessed against the stream she selected on the form, but nevertheless assessed the applicant against the DEN stream. The delegate noted that as the applicant had not provided evidence of component English, as defined in r.1.15C, she did not meet the requirements under the DEN stream. The delegate also found that the applicant did not meet the requirements under the labour agreement stream.

6. The applicant appeared before the Tribunal on 9 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sarah Osborne, the Executive Manager of the nominating employer.

7. At the hearing the Tribunal discussed with the applicant its preliminary assessment that she did not meet the requirements under any of the streams. The applicant explained that she was the holder of a Subclass 457 visa and qualified for the permanent visa under the TRT Stream however her employer had incorrectly lodged the nomination in relation to her under the DEN stream. Ms Osborne explained that she had made error by ticking the wrong box when completing the nomination form. At the time the applicant applied for the visa she had been working as a registered nurse for the nominating employer as the holder of a Subclass 457 visa for over two years and all the requirements for the nomination under the TRT stream (r.5.19(3))would have been met. The applicant told the Tribunal that her agent did not check with the employer to ensure that the nomination was applied for under the correct stream and just assumed it would be the TRT stream because she held a 457 visa. 

8. The applicant told the Tribunal that she has been in Australia for over 14 years and regards Australia as home. She stated that she has no connection to Japan after living in Australia for so long. She is also concerned that her qualifications are not recognised in Japan and that she would not be able to find employment in her field. She said that she has integrated well into the Australian community and wants to continue to live, work and contribute to the community. She has completed a number of qualifications in Australia and is a registered nurse specliasing in aged care.

9. Ms Osborne gave evidence about the nature of the applicant’s employment at the aged care facility. She stated that the applicant possesses a unique set of skills as a registered nurse and holistic care nurse and would be very difficult to replace.

10. After the hearing the Tribunal received a number of documents in response to the Tribunal’s suggestion at the hearing that it might refer the matter to the Minister.

11. Although the Tribunal has concluded that the decision under review must be affirmed, it recommends, for the reasons detailed further below, that the matter be referred to the Department for consideration by the Minister under s.351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.223 in the TRT stream. The Tribunal has also assessed the applicant against the alternative requirements in the DEN and Agreement streams. 

    Nomination of a position

13. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. In addition, this criterion also requires that the nomination has been approved.

14. As indicated above, the application for approval of a nomination position in respect of the applicant was made by the employer under the DEN stream, r.5.19(4), and not r.5.19(3). The Tribunal acknowledges Ms Osborne’s evidence that it was a simple error in the completion of the form, however, it has no discretion in this case. As the application for approval of a nominated position was not made under r.5.19(3), the applicant cannot meet cl.186.223(1)(a). The Tribunal accordingly finds that cl.186.223 is not met.

15. The Tribunal has also considered the applicant against the requirements of the DEN stream. Although the delegate found that the applicant did not meet the requirements in cl.186.232 relating to competent English at the time of application, the Tribunal notes that the applicant would have come under the class of persons specified by the Minister in the relevant instrument applicable at the time of application as she has at least 5 years of study in English at a secondary and/or higher education institution: Class 3 - IMMI 12/059. In any case, the applicant does not meet cl.186.234 as she did not have a suitable skills assessment from the relevant assessing authority at the time of application and is not in a class of persons specified in the instrument for that paragraph. The Tribunal acknowledges that at the time of application the applicant provided a current Certificate of Registration as a Registered Nurse (Div 1) issued by the Nursing and Midwifery Board of Australia and would have probably obtained a suitable skills assessment on this basis, however, the relevant instrument specifies the assessing authority, which in the applicant’s case is the Australian Nursing and Midwifery Accreditation council (ANMAC), and the assessment must have been provided at the time of application as required by cl.186.234(1). For these reasons, the applicant does not meet cl.186.234.

16. The applicant has not claimed, and there is no evidence to suggest that she meets the requirements for the agreement stream.

17. Given the findings made above, the Tribunal must affirm the decision under review.

    Referral to the Minister – s.351

18. At the hearing the applicant provided evidence regarding her personal and immigration history, her contribution and level of integration into the Australian community and the significant difficulties she would face if they had to return to Japan.

19. The Tribunal also received information after the hearing which included a statement from the applicant, evidence of her employment in Australia, details of her current role with the nominating employer, certificate of registration as an nurse, qualifications certificates, which include an Advanced Diploma of Western Herbal Medicine, Diploma of Nutrition, Advanced Diploma of Homeopathy, Advanced Diploma of Naturopathy, Bachelor of Health Science and Bachelor of Nursing. The applicant also provided over 15 letters of support from her friends, professional colleagues at the aged care facility, and family members of the current and former residents of the aged care facility. The references indicate that the applicant is a highly skilled dedicated aged care nurse who has made a significant contribution to the Australian community, and particularly to the aged care industry.

20. In a detailed letter of support to the Tribunal, Ms Osborne stated that the applicant’s position is a highly specialised and unique role in that she is a registered nurse and a holistic care nurse. She noted that as part of her palliative care role, the applicant also provides emotional and spiritual care for residents and has developed a strong supportive relationship with residents and their families. Ms Osborne stated that finding a registered care nurse with the applicant’s level of dedication to aged care and unique set of skills is difficult. In her opinion she regards the applicant as an asset to the Australian aged care industry and strongly supports application for permanent residence.

21. The Tribunal has also had regard to the evidence provided by Ms Osborne that they (the employer) ticked the wrong box in the nomination form. The Tribunal considers on the evidence that had the nominating employer ticked the correct box on the nomination and applied for the nomination under TRT stream, the nomination would have likely been approved and the applicant would have been able to meet the requirements for the visa under the TRT stream. The Tribunal also considers that had the applicant applied for a skills assessment from the specified assessing authority she would have likely achieved a suitable skills assessment and met the requirements under the DEN stream. It was unfortunate that the applicant only found out about the errors after she had turned 50 years of age, by which time it was too late to lodge a fresh application.

22. The Tribunal accepts that the applicant has resided in Australia for a significant period of time. She has completed a number of qualifications in Australia and is a registered nurse with specialist skills in aged care, including palliative care. The applicant has integrated well into the Australia community and has made contributions through her unique set of skills to the aged care industry, an industry experiencing a shortage of skills due to an ageing population.

23. Having carefully considered the information before it, the Tribunal is of the view that the applicant’s circumstances may be considered unique or exceptional and come within the following guidelines for referral to the Minister:

    ·The length of time the person has been present in Australia (including time spent in detention) and their level of integration into the Australian community.

    ·Circumstances where application of relevant legislation leads to unfair or unreasonable results in a particular case.

    ·Circumstances where exceptional economic, scientific, cultural or other benefit to Australia would result from the visa applicant being permitted to remain in Australia.

24. In light of the above, the Tribunal recommends that the applicant’s case be referred to the Department for consideration by the Minister pursuant to s.351 of the Act.

    DECISION

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

    Rania Skaros
    Member