1507532 (Migration)

[2016] AATA 3122

1507532 (Migration) [2016] AATA 3122 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jolly Abraham
Mr Abraham Philip
Mr Sajin George Abraham

CASE NUMBER:  1507532

DIBP REFERENCE(S):  BCC2015/335153

MEMBER:Sue Raymond

DATE:27 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 27 January 2016 at 6:17pm

STATEMENT OF REASONS FOR DECISION

1. Ms Abraham applied for a Subclass 186 visa in the Temporary Residence Transition stream on the 30 January 2015.  Her partner, Mr Philip, and son Mr Abraham, were listed as secondary applicants in that application. The Department of Immigration refused the visas on the 25 May 2015.  Ms Abraham, and the secondary applicants, sought review of that decision on 2 June 2015. Each of the review applicants appeared before the Tribunal on 27 January 2016 together with their representative, a registered migration agent.

2. I have considered a written submission received from the applicant’s representative, together with written documentation which relates to each of the review applicants and also another son of the review applicant, who has been granted a permanent visa in Australia on 3 December 2014. Further documentation was supplied at the hearing, which I have also taken into account.

3. I also heard evidence at the hearing from Ms Valerie Elliott, a company director of Ms Abraham’s employer, which company trades as Onkaparinga Valley Residential Care.

4. The Subclass 186 visa application was made by Ms Abraham in relation to an appointment of Registered Nurse (Aged Care). It is an application for a permanent visa. She arrived in Australia in April 2012 on a tourist visa. She has held a Subclass 457 temporary visa since 3 August 2012. She has worked with her current employer since that time. She has been granted a further Subclass 457 temporary visa on 3 August 2015, after the review application was lodged. It is current for a period until 3 August 2019. 

5. One of the legal requirements, which must be satisfied for this visa, is contained in Clause 186.221. That is the criterion which was under consideration by the departmental delegate. It contains two alternative elements, either of which must be satisfied at the time of the visa application, namely 30 January 2015.

6. They are:

   ·the applicant has not turned 50 OR

   ·she was a person in a class of persons specified by the Minister in an instrument in writing.

7. In my view, the relevant Instrument is IMMI 13/059, which is the one in operation at the time of the visa application. In any event, the later Instrument is not materially different, in respect of this application, and would not result in any different outcome.

8. It was properly acknowledged by the representative, on behalf of the applicants, that Ms Abraham does not satisfy an essential criterion for the visa.

9. Based on oral evidence, I find that at the date of application, Ms Abraham was aged 58 years, her date of birth being May 1956. Consequently, she had turned 50 years at that time.

10. Having regard to the terms of the relevant Instrument, I find that Ms Abraham does not fall within the relevant occupations listed, nor does she satisfy other qualifying criteria, which would effectively exempt her from the age requirement. This means Ms Abraham cannot meet an essential requirement for the grant of the visa.

11. The Tribunal must apply the migration law. The law does not allow me to make any different determination in this matter. In some instances, the legal requirements allow a discretion for a decision-maker to waive certain requirements. This particular provision does not permit me to do that.

12. For these reasons Ms Abraham does not meet the requirements for a Subclass 186 visa. The legally correct decision is that the visa must be refused. The secondary applicants depend on the primary applicant satisfying the primary requirements for the grant of the visa and also do not meet the requirements for the grant of the visa. There are no other subclasses of visa which can be considered under this application.

    Consideration of the issue of Ministerial Intervention

13. The representative has submitted that I consider referring the matter to the Minister for his Intervention. Whilst there is no formal mechanism for this to occur, section 351 Migration Act allows the Minister to exercise his discretion and substitute a more favourable decision to the applicant, if the Minister thinks that it is the public interest to do so.

14. I have had regard to whether I should refer the matter to the Minister with any recommendation for his Intervention. The Tribunal does not frequently do so.

15. I have had regard to the Minister’s Guidelines on ministerial powers.  I heard from each of the review applicants and also from Ms Elliott. There were letters of support before me and other documentation, including relating to Ms Abraham’s qualifications and training.

16. The representative submitted in her written submissions that there are strong compelling circumstances, including:

    ·The hardship Ms Abraham’s absence would cause to her Australian employer, employees of the company and also patients of the nursing establishment.

    ·The length of time she and her family have been contributing to regional South Australia and their level of integration into the Australian community.

17. At hearing the representative submitted that there were unintended consequences for employers in regional areas who face difficulties in attracting and retaining skilled staff. She mentioned that Nursing is still an occupation on the State nominated List.

18. I have taken into account the evidence of the review applicants and their desire to remain in Australia permanently, and their respective contributions to the community through work, study and volunteering. I have also taken into account the evidence of Ms Elliott and the difficulties she has in recruiting experienced staff. However, having regard to the Guidelines, and the evidence and submissions, I do not propose to refer the matter to the Minister for his Intervention. I accept that Ms Abraham is very much valued by her employer. I also accept that the employer has faced difficulties in recruiting experienced staff. Nevertheless, Ms Abraham now has a further temporary work visa which runs until August 2019. I do not accept that there is any unintended result in the application of the relevant criterion, as the legislative Instrument is quite specific as to which occupations and circumstances are addressed. I do not regard the matters identified by the representative as such as to warrant the Tribunal’s referral to the Minister.

19. Ms Abraham is at liberty to refer the matter to the Minister directly, if she wishes to do so.  That is a matter for her and her adviser.

20. The result, and my decision, is that I must affirm the decision not to grant the visa applicants Employer Nomination (class EN) Employer Nomination (subclass 186) visas. 

    DECISION

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

    Sue Raymond
    Senior Member