2310784 (Migration)

[2023] AATA 3820

2310784 (Migration) [2023] AATA 3820 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2310784

MEMBER:Wan Shum

DATE:1 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2023 at 4:30pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Childcare Centre Manager – nominating business has ceased operations – change of employers – nominated position no longer available – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.224; Schedule 4, Public Interest Criterion 4007; r 1.13

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 8 July 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 June 2015. At the time of application, Class EN contained 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 (Cth) (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 Labour Agreement stream.

4. When the application for the visa was made, the first named applicant (the applicant) was seeking the visa to work in the nominated position of Childcare Centre Manager for [Employer 1] under the Temporary Residence Transition stream.

5. This is the second time the matter has come before the Tribunal. The first time, the application was refused by a delegate of the Minister because the second named applicant was found not to satisfy Public Interest Criterion (PIC) 4007(1)(c) and the waiver was not exercised. In November 2019, while PIC 4007(1)(c) was again not met by the second named applicant, this Tribunal decided to waive the requirement and found that the applicants satisfied PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

6. On 8 July 2023, the delegate refused to grant the visas on the basis that the first named applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nominating company had since ceased operations.

7. The applicants appeared before the Tribunal on 13 October 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The legal requirements for the Subclass 186 visa

9. In order to be granted a Subclass 186 visa, it is necessary for an applicant to be nominated for a position: cl 186.223 of Schedule 2 to the Regulations. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the visa application.

10. 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 reg 1.13A and reg 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.

11. When the application was originally made on 30 June 2015, the applicant was identified in an application for approval of a nomination in the Temporary Residence Transition stream made by [Employer 1]. She had been nominated by this company under the Subclass 457 visa program. That nomination was approved.

12. However, following the Tribunal’s earlier decision to remit the matter to the Department for reconsideration in November 2019, the nominating company ceased operating the childcare centre and went into liquidation in October 2021. The applicant explained at the hearing that the owners had split up and sold [most of the [centres] that they operated. She had been informed that she would continue in her position as the Childcare Centre Manager at the [Site 1] location, which she had moved to in 2020, and was reassured that this would mean that she would remain in compliance with the visa requirements. The business was sold again to another company after around 12 months, and the childcare centre is now operated under [Employer 2]. The applicant remains employed at that location as the Childcare Centre Manager and a copy of her current contract and letter from the Director of [Employer 2] was provided to the Tribunal which confirms that she remains employed under the same terms and conditions.

13. However, due to the change of employers, the nominated position which was originally approved is not available to the applicant at this point in time. Given this, the Tribunal finds that the applicant does not meet cl 186.223(4) at the time of this decision.

14. 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.

    Ministerial Intervention

15. 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 it is in the public interest to do so. The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant, or another person, or in any other circumstances.

16. The Tribunal considers that this is an appropriate case to refer to the Minister for his intervention for the following reasons.

17. This application for the Subclass 186 was made in 2015, after the applicant had already been employed by [Employer 1], the nominator, as a Childcare Centre Manager under the 457 visa program since July 2012. At the time of the Tribunal’s earlier decision to remit the application for the visa to the Minister in November 2019, she was still employed by [Employer 1] as a Childcare Centre Manager at one of the [number] childcare centres they operated. The information before the Tribunal indicates that the application was not considered again by an Immigration officer until sometime in early 2023, by which time the nominator had gone into liquidation and the childcare centre business in [Site 1] where the applicant had last worked for the nominator had changed hands twice and was operated by another company.

18. In spite of her continued employment as a Childcare Centre Manager at the same childcare centre, albeit operated by a different entity, she now finds herself in a position where she no longer meets cl 186.223 of Schedule 2 to the Regulations. She had applied for the Subclass 186 visa in 2015. There were two factors that contributed directly to this – the time taken to process her application and the change in owners - both of which were beyond her control.

19. In respect of the processing time, it appears to the Tribunal that if a decision had been made on her visa application shortly after it was remitted to the Minister to consider the remaining criteria, there would have been no issue that she met this criterion. The applicant has been working in the childcare industry in Australia for over a decade in the occupation of Childcare Centre Manager, which the applicant points out: “remains listed as a skilled visa priority under the Ministerial Direction No 100”. Information on the immigration website relevantly states that skilled visa applications, which include Subclass 186 visa applications, are processed in order of priority with visa applications in relation to a healthcare or teaching occupation are considered the highest priority. ANZSCO Unit Group 1341 - Child Care Centre Managers is listed as a healthcare or teaching occupation. There is nothing before the Tribunal which explains the delay in processing the application when, according to the information from the Department, it was to be prioritised.

20. A further matter is the impact on the applicant’s children if the applicant was required to apply for a visa from outside Australia in circumstances where [they are] minors, and one is an Australian citizen. The Tribunal was informed that the youngest child is now potentially eligible for citizenship in another [time period] when [he/she] turns 10. The Tribunal understands that their father is domiciled in Australia, but he apparently lives in another state and the applicant advised that she has full custody of their [children] and had to apply for an AVO to protect them from him. It seems that it is not an option for her eldest [child] to live with [the] father if the applicant and the youngest [child] had to depart Australia to apply for another visa.

21. Following this decision, the applicant will be able to seek the Minister’s intervention and provide evidence directly to the Minister to support her request.

    DECISION

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

    Wan Shum
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.