1602772 (Migration)

[2016] AATA 4733

1602772 (Migration) [2016] AATA 4733 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tracy-Jane Patricia Kerr
Mr Scott Kelso Kerr
Mr Cameron Kelso Kerr

CASE NUMBER:  1602772

DIBP REFERENCE(S):  BCC2015/1867468

MEMBER:Alison Mercer

DATE:30 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2016 at 10:32am

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 3 March 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 29 June 2015. 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 first named applicant (the applicant) was seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Corporate Services Manager. 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 visas because she found that the applicant did not meet cl.186.223(4) of Schedule 2 to the Regulations. The delegate noted that cl.186.223(4) required that the nominated position was still available to the applicant at the time of decision, and found that the applicant’s proposed employer, East Kimberley Job Pathways Pty Ltd had advised the Department in writing that it no longer intended to employ the applicant beyond 12 February 2016 (the date of expiry of her subclass 457 visa). The delegate further noted that the applicant was advised of this by way of a natural justice letter sent to her by the Department on 22 January 2016, to which she responded on 17 February 2016. The delegate acknowledged that the applicant claimed that she had been unfairly dismissed from her employment and intended to take legal action on this basis, and that the applicant believed that this had occurred after she sought reimbursement from her employer for the costs of the subclass 186 visa application process. The delegate further acknowledged that the applicant’s contract of employment ran until 30 June 2018, but found that the more recent advice from her employer to the effect that it had put her on ‘gardening leave’ until 12 February 2018, after which it would no longer employ or nominate her, superseded the contract of employment end date and meant that the nominated position was no longer available. As the applicant did not meet cl.186.223(4), she could not satisfy cl.186.223 as a whole and did not meet the TRT stream requirements. The delegate further found that she did not meet the nomination requirements for the Direct Entry or Agreement streams.

6. The delegate also refused the visa applications of the second and third named applicants (the applicant’s husband and son) on the basis that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 3 March 2016, which was accompanied by a copy of the delegate’s decision.  In addition, the following supporting documents were provided:

   ·email from Unfair Dismissals Australia Pty Ltd to the applicant dated 9 March 2016 indicating that the applicant made an unfair dismissal application to the Fair Work Commission on 17 February 2016, in which she alleged that her employment had effectively been terminated prior to her contract of employment expiry date of 30 June 2016 after she made inquiries about being reimbursed for the costs of her permanent residence application, and that no valid reason was given for putting her on ‘gardening leave’ or effectively terminating her employment on 12 February 2016, and that she sought reinstatement to her position in line with the employer’s original undertaking in 2014 to nominate her for permanent residence;

   ·statutory declaration from the applicant and her husband dated 5 February 2016, in which they indicate that their son (the third named applicant) had asked to move away from Kununurra due to the stress of the visa situation over the previous 7 years, and was currently under the guardianship of his grandmother (the applicant’s mother) in the town of Gelorup;

   ·various letters of support for the applicant relating to her involvement with her former employer and the community in Kununurra and the north west Kimberley region of Western Australia from Jemma Ninness, Secretary, Kununurra Motocross Club (9 March 2016), Alena Birch, Indigenous Community Member (22 February 2016), and Quentin Parker, owner/director of Parker Poynt Packhouse (3 March 2016); and

   ·letter of reference for the second named applicant from his employer, Matthew Dear, General Manager, Ord Irrigation Cooperative (14 March 2016).

8. The Tribunal wrote to the applicants on 2 September 2016 to invite them to participate in a hearing by telephone conference on 14 October 2016.  On 14 September 2016, the applicants advised the Tribunal that they had now moved to Darwin in the Northern Territory.

9. On 10 October 2016, the applicants indicated that they would attend the hearing on 14 October 2016.  They provided the following additional documents:

   ·email sent by Fiona Fraser (nee Birnie), ex-Contractual Compliance Manger at East Kimberley Job Pathways Pty Ltd, to the Board of Directors, dated 15 February 2016, raising concerns about being advised that she was redundant in January 2016 and disputing performance feedback she received from the CEO and HR in relation to her suitability to replace the applicant in the role previously occupied by her (the applicant) (Operations Manager);

   ·letter from First Assistant Secretary, Indigenous Affairs Group, Programme, Integrity and Engagement Division, Department of the Prime Minister and Cabinet, to Elaine Gascoine, 30 June 2016, responding to allegations by the latter about waste and misuse of funds in the Kimberley region and in particular by East Kimberley Job Pathways Pty Ltd and advising that they had been referred to the PM & C’s Governance, Audit and Reporting Branch for assessment; and

   ·undated statement by the applicant, in which she sets out her employment history in the East Kimberley region, initially with East Kimberley Community Development Program and subsequently with East Kimberley Job Pathways Pty Ltd, in which she details a history of conflict between her and various unethical officers common to both organisations which she believes led to her effective (but unlawful) dismissal from the latter organisation and its refusal to continue to nominate her and her family for subclass 186 visas, despite earlier undertakings to do so. She details a range of allegations of corruption and states that she and her family were put under enormous duress after she stood up to this behaviour, as a result of which she was effectively and unlawfully terminated and she and her family’s expectation of permanent residence (after over 7 years) in Australia were dashed. She states that she and her family have suffered significantly both emotionally and financially as a result.

10. The applicant appeared before the Tribunal by conference telephone on 14 October 2016 to give evidence and present arguments.

11. The applicant confirmed the contents of her written statement.  She told the Tribunal that the status of the case with the Fair Work Commission was that the Commission agreed that she had been unfairly dismissed and a settlement was reached, which was subject to a confidentiality agreement.  The applicant said that the settlement did not provide for her to be reinstated, even though this was what she had wanted.  As East Kimberley Job Pathways was the only provider of its kind in the Kimberley, the applicant had relocated to Darwin to seek employment in a similar field.  The applicant told the Tribunal that she and her family had been in Australia since 2008 on the basis of subclass 457 visas held by her.  She said that some of these were affected by poor advice she received from migration agents, and some by employment disputes, such as the one with East Kimberley Job Pathways.  The latter had been particularly difficult for the family as it put them under a lot of stress.  Her son had a very difficult time and went to 3 different schools in 1 year.  He has spent half his life in Australia.  The applicant said that living with the uncertainty of their immigration status for 8 years had taken its toll on the family.  The applicant further stated that she believed that there were exceptional circumstances in their case, as she had been victimised by East Kimberley Job Pathways. She said that she believed that her principal antagonist there had now been ‘let go’ by the Department of Prime Minister and Cabinet because of numerous breaches.  The applicant indicated that she intended to seek Ministerial intervention pursuant to s.351 of the Act in the event that the review application was unsuccessful.  The Tribunal noted that the requirements of cl.186.223(4) were very specific and did not confer any discretion on decision-makers to waive its requirements or to take into account compassionate or compelling circumstances for why it might not be met.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets cl.186.223.

    Nomination of a position

14. 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.

15. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

16. It was not disputed that in this case, the employer who had nominated the applicant for a subclass 186 visa in the TRT stream, East Kimberley Job Pathways, terminated the applicant’s employment and advised the Department in October 2015 that her employment would cease on the expiry of her subclass 457 visa on 12 February 2016.  The Tribunal notes that the circumstances of the applicant’s dismissal from employment were contentious, to the extent that the applicant brought a claim of unfair dismissal to the Fair Work Commission, which resulted in a settlement being made to her apparently in recognition of the fact that it was accepted that she had been unfairly dismissed, and which is subject to a confidentiality clause.  The settlement did not include reinstatement.  Regardless of the circumstances of the cessation of employment, the fact remains that the nominated position is no longer still available to the applicant and thus cl.186.223(4) is not met and the applicant cannot satisfy cl.186.223 as a whole.

17. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

18. The Tribunal must also affirm the decisions not to grant the second and third named applicants (the applicant’s husband and son) subclass 186 visas as they do not meet the secondary visa criteria to be members of the family unit of a person who meets the primary visa criteria, and there is no evidence that either of them meets the primary visa criteria in his own right.

19. The Tribunal notes that it remains open to the applicants to seek Ministerial intervention pursuant to s.351 of the Act to grant them a visa if they believe that their circumstances meet the relevant Ministerial guidelines or otherwise have compelling or compassionate circumstances warranting intervention in their case.

    DECISION

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

    Alison Mercer
    Member