1416814 (Migration)

[2015] AATA 3580

1416814 (Migration) [2015] AATA 3580 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dorothy Paulette Prinsloo
Miss Andre Kathleen Theron
Miss Lisa Maree Theron

CASE NUMBER:  1416814

DIBP REFERENCE(S):  BCC2014/1417188

MEMBER:Brook Hely

DATE:30 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 30 October 2015 at 4:22pm

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 9 June 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of midwife. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187. 231 of Schedule 2 to the Regulations because, at the time of application, the applicant had already turned 50 and was not in a class of persons specified by the Minister under the relevant instrument.

6. The applicants appeared before the Tribunal on 30 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Kathy Wright on behalf of the applicant’s sponsoring employer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Age requirements

8. At the time the visa application is made, an applicant in the Direct Entry stream must either not have turned 50, or must be in a class of persons specified in legislative instrument IMMI 13/059: cl.187.231.  

9. In the present case the applicant was aged 52 years at the time of application. Moreover, as confirmed by the reviewer applicant at the hearing, there is no evidence to show that the visa applicant falls within a relevant class of persons specified in legislative instrument IMMI 13/059. Specifically, she is not employed under a prescribed occupation or industry listed under Class 1 of IMMI 13/059, namely as a minister of religion; researcher, scientist or technical specialist; or senior academic. Nor has the visa applicant ever been the holder of a subclass 444, 461 or 422 visa, and/or a medical practitioner (ANZSCO Minor Group 253), such as to be capable of falling under Class 3 of IMMI 13/059. Therefore, cl.187.231 is not met.

10. The Tribunal acknowledges the letters of support submitted to the Tribunal, as well as the supportive oral evidence from Mrs Wright, in relation to the applicant’s highly valued skills and experience as a midwife and the great difficulties finding experienced midwives in the Swan Hill region. The Tribunal accepts that the applicant possesses greatly needed skills that would be of particular benefit to her current employer. Regrettably, however, the Tribunal has no discretion to waive or modify the above requirements for meeting cl.187.231.

11. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

12. There are no claims or evidence before the Tribunal to indicate that any of the secondary applicants meet the primary criteria for the grant of the visa. Rather, their entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable. Given the Tribunal’s finding that the applicant does not meet the criteria for the grant of the visa, and given the lack of any claims or evidence to show that any of the secondary applicants meet the primary criteria for the grant of the visa, it follows that they are also not entitled to the visa.

    MINISTERIAL INTERVENTION

13. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

14. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.    Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department by a review Tribunal or which exhibit one or more unique or exceptional circumstances.[1] Relevantly, this includes cases involving ‘Exceptional economic, scientific, cultural or other benefit to Australia’.

    [1] >

    At the hearing, the Tribunal received persuasive oral evidence from Mrs Kathy Wright, the Executive Officer – Clinical Services with Swan Hill District Health. The Department file also included a support letter from Mrs Wright, as well as from Mr Andrew Broad, the Federal Member for Mallee. Mrs Wright explained to the Tribunal that, due to the isolation of Swan Hill, it was incredibly difficult to attract health professionals to Swan Hill with high quality experience and qualifications. She explained that the birthing services provided through Swan Hill District Health were critical to the local community and she noted that they had recently assumed responsibility for providing birthing services to their nearest town approximately 60 km away due to the absence of a current General Practitioner or obstetrician. She commented very highly on the visa applicant’s performance in the role of midwife, noting that she has already been promoted to the position of Nursing Unit Manager of midwifery. Mrs Wright commented that it would penalise the local community enormously if the visa applicant were required to depart Australia.

15. The Tribunal accepts from this evidence that the visa applicant’s circumstances are capable of falling within the Minister’s guidelines on the basis of providing an exceptional benefit to Australia. As such, the Tribunal considers it appropriate to refer this case to the attention of the Minister in order for him to consider whether to exercise his s. 351 discretionary intervention powers in this case.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Brook Hely
    Member