Anthony (Migration)

[2024] AATA 2800

Anthony (Migration) [2024] AATA 2800 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hugh Benjamin Anthony
Mrs Ceris Sian Anthony
Master Benjamin Marcel Anthony
Miss Leila Renee Anthony
Miss Ciara Sian Anthony

Master Jacob John Anthony

REPRESENTATIVE:  Mr Michael McCrudden

CASE NUMBER:  2211599

HOME AFFAIRS REFERENCE(S):          BCC2021/122599

MEMBER:Sheridan Aster

DATE:23 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2024 at 11:30am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Airconditioning and Mechanical Services Plumber – skills assessment within the specified three year period – COVID-related disruption to processing skills assessment applications – occupational skills shortage – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.234

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 1 August 2022 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 15 January 2021. 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 (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.

4. 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.

5. 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 Airconditioning and Mechanical Services Plumber.

6. The delegate refused to grant the visas because the applicant did not meet cl 186.234 of Schedule 2 to the Regulations, which relates to the assessment of the applicant’s skills for the occupation.

7. The first and second named applicants appeared before the Tribunal by video on 20 June 2024 to give evidence and present arguments. The applicants were represented in relation to the review and the representative attended the hearing.

8. The sixth named applicant was born on 6 March 2022, however the Department was not notified of his birth until after the primary decision was made in respect to the rest of the family. The Tribunal was notified of his birth at the hearing and agreed to withhold its decision until a primary decision was made in respect to the child. On 1 July 2024, the Department refused to grant a visa to the sixth named applicant on the basis that he was not the member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria. An application for review of that decision was made to the Tribunal and that application was joined with the application currently under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills assessment and prior employment

10. For an applicant in the Direct Entry stream, cl 186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

11. For this criterion, the relevant class of exempt persons has been specified in Migration Instrument LIN 19/216. The instrument specifies that, for the Direct Entry stream, academic applicants, science applicants and Subclass 444 and 461 workers are exempt from the skills requirement. None of these exemptions apply to the applicant.

12. For the skills assessment, the relevant assessing authorities for each occupation have been specified in LIN 19/049. The date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than three years after the date of assessment, that period must not have ended. The assessing authority for an air-conditioning and mechanical services plumber is Trades Recognition Australia (TRA).

13. In addition, the applicant must have been employed in the occupation for three years. This employment must have been on a full-time basis and at the level of skill required for the occupation.

14. In submissions received on 16 June 2024, the applicant’s representative acknowledged that he was unable to satisfy cl 186.234(2)(ac) because at the time he lodged the visa application, he did not hold a positive skills assessment that was issued within the specified three year period.

15. The applicant held a positive offshore technical skills record, issued by VETASSESS on 17 October 2017 (approximately three years and three months before the application was lodged). Departmental policy at 3.5.11.2 outlines that “TRA operates the Offshore Skills Assessment Program (OSAP) under which offshore skills assessments for permanent residence are conducted in certain countries. These assessments are conducted by registered training organisations (RTOs) appointed by TRA for the purpose of conducting such assessments. Assessments conducted by a TRA-approved RTO under the OSAP may be treated as skills assessments conducted by TRA for the purposes of paragraph 186.234(2)(a).” The applicant later obtained a positive skills assessment, issued by VETASSESS on behalf of TRA on 24 February 2022 (approximately one year and one month after the application was lodged).

16. In the circumstances, the applicant does not meet the requirements of cl 186.234. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    Request for ministerial intervention

17. The applicant requested that the Tribunal refer his application to the Minister for consideration under s 351 of the Act. The section provides that the Minister may substitute for a decision of the Tribunal another more favourable decision, whether or not the Tribunal had the power to make that other decision.

18. The Minister has issued guidelines describing the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration. One such example is: circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

19. In submissions received 16 June 2024, the applicant’s representative submitted that the matter should be referred to the Minister on the basis that the decision to refuse the visa:

    a.has the effect of working against the stated objectives of the migration program and can therefore be seen as having an unintended consequence;

    b.was the product of a circumstance not anticipated by the legislation, being the disruption to processing skills assessment applications caused by measures taken to mitigate the public health risks associated with COVID-19; and

    c.is fundamentally unfair and will cause significant hardship to Mr Anthony, his family, his employer, and the state of South Australia.

20. It was highlighted that the nomination was approved and there is a recognised shortage of airconditioning and mechanical services plumbers. The applicant was under 45 at the time of application and at the time the nomination was approved. He is no longer under 45 and would not be in a position to make a new application. Unless the Minister were to intervene, the sponsoring employer would be prevented from retaining a skilled worker.

21. An application was made for a new skills assessment to be undertaken by VETASSESS in November 2020. The applicant applied for a fast-track assessment, which is usually complete within ten weeks. However, to complete the assessment, the applicant was required to travel to Victoria for the practical. This was not possible because of COVID-19. The applicant provided the Tribunal with a letter of acknowledgement of his urgent request for assessment issued by VETASSESS on 24 November 2020. The letter confirms that the applicant was required to undertake his practical assessment in Melbourne and that VETASSESS could not accommodate the request to complete the assessment within the requested timeframe because of travel restrictions.

22. The submissions note that the Senate Select Committee on COVID-19 reported that the pandemic was a once in a century crisis. It could not have been anticipated.

23. At the hearing, the applicant gave evidence that his previous employment was terminated because the business had been negatively impacted by COVID-19. He was able to find a new sponsor, Nelson Airconditioning. The business was able to continue operating through the pandemic because the clients include schools and medical centers.

24. Mr Mark Nelson, Director of Nelson Airconditioning, provided a letter of support, dated 11 June 2024. Mr Nelson outlined that the applicant has been employed by Nelson Airconditioning Pty Ltd since 18 February 2021. He explained that the business advertised numerous times over the preceding 12 months before securing the applicant for the position. The applicant was described as reliable and hard working.

25. The applicant has two brothers who are both Australian citizens. His brother in Adelaide has two children and his brother in Melbourne has three. The family are close and would like to remain living in the same country.

26. In the circumstances, the Tribunal considers that the impact of COVID-19 on the applicants past employment and ability to progress his skills assessment for his current application was not anticipated by the legislation. The applicant has demonstrated that he has the skills for the nominated occupation in two successful skills assessments that fell just outside the mandatory timeframe. He has been employed in the position with his current sponsor for more than three years and his sponsor has expressed an intention to continue the employment relationship.

27. The Tribunal requests that the Minister consider the application for exercise of his discretion under s 351 of the Act. A copy of the applicant’s submissions of 16 June 2024 and its annexures will be provided to the Department in support of the request.

    DECISION

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

    Sheridan Aster
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    .

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.