1607307 (Migration)

[2016] AATA 4517

1607307 (Migration) [2016] AATA 4517 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Edwin Quintas Asariyas
Miss Ann Praveena QUINTAS

CASE NUMBER:  1607307

DIBP REFERENCE(S):  BCC2015/2744646

MEMBER:Mary-Ann Cooper

DATE:12 October 2016

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 12 October 2016 at 5:02pm

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 20 September 2015. 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 Temporary Residence Transition stream, to work in the nominated position of Mechanical Engineering Technician. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least 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 the applicant did not meet cl.187.221 of Schedule 2 to the Regulations because at the time of application the applicant was aged over 50 and was not a person in a class specified under the relevant instrument.

6. The applicant appeared before the Tribunal by telephone on 22 September 2016 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.187.221 at the time of application.

   Age requirements

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.187.221.

11. In the present case the applicant was aged 58 years at the time of application. On this basis it is necessary to determine if he is in a class of persons specified in IMMI 15/083. It specifies the following classes:

    • Skill level 1 or 2 researchers, scientists and technical specialists nominated by an Australian government scientific agency
    • Senior academics (as described in the legislative instrument) nominated by a university in Australia
    • UC-457 visa holders who have been working for their nominating employer for at least the 4 years immediately before applying for their visa and whose annual earnings for each year in that 4 year period have been at least at the Fair Work High Income Threshold (FWHIT).
    • Medical practitioners

12. In his visa application the applicant claimed that he was exempt from the age requirement because he has been employed by his sponsor for the last four years with a salary equivalent to the FWHIT.

13. The FWHIT is an annually indexed benchmark income set under the Fair Work Act 2009 (Cth). As Departmental policy explains:

    As the FWHIT is indexed every year effective 1 July, a specific threshold would apply to the period from 1 July of a particular year to 30 June of the next year, that is, the period representing the tax (or fiscal) year. Since the 2009-2010 fiscal year, the FWHIT has been as follows:
    As the Fair Work Act 2009 came into effect only from 1 July 2009, under policy the FWHIT that relates to the 2009-2010 fiscal year (AUD 108 300) is to be taken to have been the FWHIT applicable to the 2008-2009 fiscal year for the purposes of assessing eligibility for the age exemption.

    • 2009-2010: AUD 108 300
    • 2010-2011: AUD 113 800
    • 2011-2012: AUD 118 100
    • 2012-2013: AUD 123 300
    • 2013-2014: AUD 129 300
    • 2014-2015: AUD 133 000.

    Earnings equivalent to the FWHIT

    Under policy, for the purposes of assessing whether the visa applicant was paid above the FWHIT, ‘earnings’ has the meaning as in regulation 2.57A (which is based on the definition of ‘earnings’ in s332 of the Fair Work Act 2009), which means:
    Included/permitted are:
    and

    • wages, any amounts applied or dealt with in any way on the employee’s behalf or as the employee directs, and the agreed money value of non-monetary benefits (for example, the value agreed between nominator and the employee of a motor vehicle provided for private use)
    • allowances such as a living away from home allowance (LAFHA) and other allowances packaged under salary packaging arrangements.

    Not included/not permitted are:

    • payments the amount of which cannot be determined in advance, reimbursements and the nominator’s contribution to superannuation

    and

    • contingent payments such as overtime, commissions and bonuses and reimbursements of expenses incurred.

14. The Tribunal acknowledges it is not bound by policy but in the circumstances sees no reason to depart from it. The Department’s file demonstrates that the applicant was asked to provide evidence supporting his claimed exemption however none was provided. Consequently, as recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate found the applicant had turned 50 and was not within the class of persons exempt from the age requirement. He therefore did not meet cl.187.221 and the visas were refused.

15. At the hearing the applicant confirmed he had worked for his nominating employer for the last 4 years as a Mechanical Engineering Technician and that his salary is $68,000. He acknowledged that he had not earned the equivalent of the FWHIT in any of the years of his employment. He said his employer provides him with accommodation for which he pays a reduced rent however he is not provided with a car or any allowances. He estimated that his rent is about $50 per week below the market rate. In total per year this would amount to $2500.00, an insufficient amount to bring the applicant to the FWHIT.

16. The applicant conceded that he was not otherwise a person in a class specified by the Minister under the relevant instrument. Nor is there any evidence before the Tribunal to indicate he falls within such a class. That is, he confirmed that he was not employed in a specified occupation or industry under the instrument and, additionally, he agreed that his annual earnings for each year in the four-year period before applying for the visa were well below the Fair Work Higher Income Threshold.

17. Therefore, cl.187.221 is not met.

    CONCLUSION

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

    Secondary applicant/s

19. The delegate also refused visas to the secondary applicants, the partner and children of the visa applicant and who were included in his visa application. At the hearing the applicant confirmed that the review application was made only in respect of himself and his daughter, the second named applicant.

20. There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 187.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 187 visa. As the applicant does not satisfy the primary criteria for a subclass 187 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 187.311 and, therefore, the criteria for a subclass 187 visas, or any other subclass.

    Ministerial intervention

21. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

22. The Tribunal allowed the applicant additional time to provide further documents in support of such a referral.

23. A submission was received from his representative, outlining the applicant’s background and noting that although there has been a downturn in the mining sector, the applicant’s skills as a Mechanical Engineering Technician, and particularly his advanced skillset in the niche specialisation of Rewinding, are needed and highly valued. Reference is made to the 2015 -16 Australian Skills Shortage List which indicates that engineering technicians and trades workers are in short supply. It is acknowledged that his salary is below the FWHIT however it is also noted that it is above both the Award rate and TSMIT.

24. Relying on compassionate circumstances, it is claimed that denial of the applicants’ visa would have “a significant and serious effect on the family, the sponsoring Australian employer, and surrounding community as a whole …the family are settled and valued members of the Kalgoorlie community  ...  and they would suffer economic and mental hardship if they were required to depart Australia.”

25. In referring to exceptional economic benefits that would result from permitting the applicants to remain, it was further claimed that the applicant has used his “invaluable skill sets” to train young Australians over the last 5 years and that he should be allowed to continue this valuable work. It is further noted that his daughter is excelling in her medical studies   and that “the benefit of having an Australian trained and educated medical science professional and a highly skilled trade professional in regional Australia is substantial and one of obvious exceptional economic and scientific benefit to Australia.”

26. These claims of the applicant’s valuable and specialised skills were supported in correspondence from his employer’s Managing Director. He stated that the applicant’s skills and experience have been “highly advantageous” to the company and that he “has shown great ability to train our junior employees.” It is further stated that if he is required to depart Australia it will “leave a large void in [the company’s] senior organizational operations that will be difficult to replace” and the company sees “many years of continued service” for him.  In addition, it is said that “he is highly regarded by his work colleagues who look to him for support and guidance” and “his regular involvement in church and community events holds him in good stead within the Kalgoorlie-Boulder community.”

27. Attached to the submission were documents evidencing the applicant’s qualifications and various licences, his tax returns, his employment contract, his daughter’s enrolment in  Medicine at Edith Cowan University and her recent invitation to participate in a Higher Degree by Research

28. Several additional letters of support were also provided. A Kalgoorlie resident and colleague stated that the applicant was a loyal, dedicated and skilled worker who was an asset to the community. Similarly his parish priest and parish secretary wrote recommending him, advising that he has been a member of the parish community for several years, and is a “committed, friendly and supportive parishioner” and a “conscientious and respectable person.. who.. works hard.” Further, he is a “conscientious and highly skilled work, a good and supportive member of our community” with a “proven capacity to be a good citizen in our community.”

29. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Mary-Ann Cooper
    Member