Amin (Migration)

[2017] AATA 1634

Amin (Migration) [2017] AATA 1634 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Shahid Amin
Mrs Azra Shahid
Mr Usman Shahid Amin
Ms Sahar Amin
Mr Ali Shahid Amin

CASE NUMBER:  1620858

DIBP REFERENCE(S):  BCC2016/207049

MEMBER:Karen Synon

DATE:19 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.231 of Schedule 2 to the Regulations.

Statement made on 19 September 2017 at 1:51pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme – Direct Entry stream – Position of General Practitioner – Age requirement – Applicant had turned fifty – Employed as a medical practitioner for four years – Holder of a 457 visa during the entire period – Time on bridging visas counts as continuous service

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 187.221, cl 187.231

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 14 January 2016.  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 ‘General Practitioner’.  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 he had turned 50 at the time of application and was not an exempt applicant.

6. The applicants applied for review of the primary decision on 7 December 2016 and provided a copy of the department’s decision to the Tribunal.

7. The applicant appeared before the Tribunal on 19 July 2017 to give evidence and present arguments.  The hearing was conducted by telephone with the applicant in South Australia.

8. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is cl.187.231.

11. At the time the visa application is made, an applicant in the Direct Entry stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.187.231

12. In the present case the visa application records the applicant was born on 11 June 1959 making him aged 56 years at the time of application.  During the hearing the applicant agreed he had turned 50 at the time of application.  He therefore does not satisfy cl.187.231(a).

13. The Tribunal discussed with the applicant at the hearing the requirements set out above and whether he is in the class of people being a Medical Practitioner.  The applicant contended and provided oral evidence that he is in a class of people in accordance with the relevant instrument.  After discussion the Tribunal granted additional time after the hearing for evidence of the applicant’s employment as general practitioner to be provided.  On 3 August 2017 a submission and supporting documents were provided.

14. Part 3, paragraph 10 of Legislative instrument 17/058 dated 23 June 2017 relevantly sets out the applicants for a subclass 187 (Direct Stream) who are not required to be below the age of 50 at the time of application thus:

    For the purposes of paragraphs 186.231(b) and 187.231(b) of the Regulations, the following classes of persons are specified:

    (a) researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who are nominated by Australian scientific government agencies;

    (b) academics who are nominated by an Australian university to be employed at an Academic Level of B, C, D or E in one of the following positions:

    (i) University Lecturer (ANZSCO: 242111); or

    (ii) Faculty Head (ANZSCO: 134411);

    (c) Persons who hold a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa and who have been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave) in the three years immediately before applying for the Subclass 186 or Subclass 187 visa: and

    (d) persons who meet all of the following requirements:

    (i) the person is a medical practitioner (ANZSCO MINOR GROUP 253);

    (ii) the person has been employed as a medical practitioner for a period of at least four years immediately before applying for the Subclass 186 or Subclass 187 visa;

    (iii) during that period the applicant was the holder of a Subclass 457 visa;

    (iv) the person was employed in regional Australia for at least two years during the period of four years; and

    (v) the nominated position is located in regional Australia.

15. The delegate appears to have considered whether the applicant is in a class of people under 10(b) observing that while he was nominated by a university in Australia, he was not to be employed at an Academic level of A.  At the hearing the applicant asserted only that he was a medical practitioner.  He gave categorical evidence that he not satisfy any other category of exemption/class of specified person.

16. The Tribunal has therefore proceeded on the basis of considering if the applicant is in a class of persons exempt in accordance with IMMI 17/058 10(d).

    Is the applicant a medical practitioner (ANZSCO Minor Group 253)?

17. The evidence before the Tribunal confirms that the applicant is a registered Medical Practitioner (ANZSCO Minor Group 235) as evidenced by documentation provided to the department in the form of accreditation from The Royal Australian College of General Practitioners (at folio 97).

18. The Tribunal is therefore satisfied that the applicant meets paragraph 10(d)(i).

    Was the applicant employed as a medical practitioner for a period of at least four years immediately before applying for the for Subclass 187 visa?

19. The evidence before the Tribunal is that the applicant was employed as a medical practitioner for four years immediately before applying for the visa on 14 January 2016.  In particular the Tribunal accepts that the applicant was employed as a medical practitioner at the Gawler GP Inc from June 2009 to March 2013 and at Allcare Medical Centre from April 2013 (at folio 53).  Supporting this, the Tribunal notes that the applicant was granted a Subclass 457 visa on 22 February 2012 to work in the nominated occupation of General Medical Practitioner.

20. The Tribunal is therefore satisfied that the applicant meets paragraph 10(d)(ii).

    During that period was the applicant the holder of a Subclass 457 visa?

21. In considering this issue the Tribunal has considered whether the fact that during the periods 22 February 2012 and 28 May 2012 and 29 June 2013 and 20 February 2014 while 457 applications were being determined the applicant was on bridging visas and that further during the period 29 June 2013 to 21 July 2013 the applicant was not the holder of a 457 visa or a related bridging visa.

22. The applicant was the holder of a 457 visa during the periods: 22 February 2008 to 28 February 2012; 28 May 2012 to 28 June 2013; and 21 February 2014 to 21 February 2016.

23. The Tribunal invited submissions at the hearing about whether 10(d)(iii) requires the applicant to have been the holder of a Subclass 457 visa during the entire 4 year period referred to in 10(d)(ii).  In response, after the hearing, written submissions contended that during the period of time the applicant was on a bridging visa “the same rules, regulations, licenses, the ability to prescribe drugs and medicines, payments for services rendered, and payment to ATO etc” continue as when the applicant held the 457 visa" means that legally the time on the bridging visas can be counted as being continuous service.

24. The Tribunal notes that the words “during that period” in IMMI 17/058 10(d)(iii) are ambiguous and open to interpretation and could be interpreted as either requiring the period holding the 457 visa to be held either continuously or at least a of that period.

25. A strict interpretation of 10(d)(iii) suggests that the applicant must be the holder of a Subclass 457 visa during the whole of the period 10(d)(ii) and this is arguably supported by the IMMI 17/058 explanatory memorandum which states that is substantially the same as IMMI 15/083 in which the equivalent provision (Class 6 (b)(i)) states: “who have been working in their nominated occupation as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa”.  However, the current legislation remains ambiguous and needs to be interpreted in a way that gives it work to do.  Given the current 4 year limit on Subclass 457, it is difficult to see how this exception would reasonable apply.

26. Further, while PAM3 does not specifically refer to the Direct Entry scheme, it does make reference to the Temporary Residence Transition stream under cl.187.221 in relation to which it relevantly states:

    6.2.12.3.8 Employment on a UC-457 related bridging visa

    As a UC-457 visa cannot be granted for more than 4 years, it may be unlikely that the visa applicant will have been working for their nominating employer on the same UC-457 visa for the whole 4 year period.  Under policy, any period of time working for the nominating employer on a bridging visa while waiting for a subsequent UC-457 visa to be granted may be counted towards the 4 year period for this age exemption.  Time spent on a bridging visa prior to the initial UC-457 visa being granted cannot be counted.

27. Considering that IMMI 17/083 11(d) which covers age exemptions in the Temporary Residence Transition stream is identically worded to IMMI 17/083 10(d) it is possible that the Department would apply the same policy to the Direct Entry Scheme.

28. For the same reason and due to the ambiguity of the words “during that period” in 10(d)(iii), because the Tribunal has interpreted the intent of those words to mean that the applicant only needs to hold the Subclass 457 for part of that period then regardless of whether he held a bridging visa or no visa, because he held a Subclass 457 at some points during the relevant period in 10(d)(ii) the applicant would be able to meets 10(d)(iii).

29. After considering this issue carefully the Tribunal considers that 10(d)(iii) does not require the applicant to have been the holder of a Subclass 457 visa continuously during the four year period of employment under 10(d)(ii) and that it is sufficient that the applicant was the holder of a Subclass 457 visa at sometime during the four year period he was employed.

30. The Tribunal is therefore satisfied that the applicant meets paragraph 10(d)(iii).

    Was the applicant employed in regional Australia for at least two years during the period of four years?

31. Schedule B of Legislative Instrument 16/045 specifies the parts of Australia for the purposes of the definition of regional Australia.  Relevantly, the entire state of South Australia is specified.

32. The evidence before the Tribunal is that the applicant has been employed in South Australia at: Gawler GP Inc; AllCare Medical Centre; Augusta Westside Medical Centre; and Springwood Family Medical since 2009 as a medical practitioner.

33. The Tribunal is therefore satisfied that the applicant meets paragraph 10(d)(iv).

    Is the nominated position located in regional Australia?

34. The position to which the applicant is nominated is that of General Practitioner by Springwood Family Medical located at Shop 10, 49-51 Cheek Avenue, Gawler East, South Australia.

35. As noted above, Schedule B of Legislative Instrument 16/045 specifies the entire state of South Australia as regional Australia.

36. The Tribunal is therefore satisfied that the applicant meets paragraph 10(d)(v).

37. As the applicant meets all the requirements of paragraph 10(d) of IMMI 17/058, the Tribunal is satisfied that he is in a class of persons who are not required to be below the age of 45 at the time of application.

38. Therefore the applicant meets cl.187.231(b) and cl.187.231 in its entirety.

39. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

40. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.231 of Schedule 2 to the Regulations.

    Karen Synon
    Member