Atif (Migration)

[2023] AATA 125

Atif (Migration) [2023] AATA 125 (11 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maria

Atif

Mr Muhammad Atif Ansari
Master

Muhammad Yousuf Ansari

Miss Aisha Ansari

CASE NUMBER:  1910377

HOME AFFAIRS REFERENCE(S):          BCC2018/5368801

MEMBER:K. Chapman

DATE:11 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Statement made on 11 January 2023 at 10:46am 

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Education Adviser – no approved nomination – nominator ceased trading – new employer willing to nominate applicant – referral for Ministerial Intervention – strong compassionate circumstances – one child acquired Australian citizenship – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

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 5 April 2019, to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant, Mrs Maria Atif, applied for the visa on 30 November 2018. She has included the second, third and fourth named applicants in the visa application (her husband and two eldest children). A third child of the first named applicant was born in 2022, after the primary decision, and by operation of law cannot be included in the visa application. All three children were born in Australia, and the third named applicant recently acquired Australian citizenship having attained the age of ten years.

3. At the time of application, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the first named applicant (hereafter ‘the applicant’) is seeking the visa in the Short-term stream to work in the nominated occupation of Education Adviser (ANZSCO 249111).

4. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations, because they were not the subject of an approved nomination as required. On 25 April 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with the application for review.

5. The applicant appeared by telephone before the Tribunal on 14 October 2022 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone. The Tribunal also took evidence by telephone from the second named applicant. The Tribunal granted time for post-hearing material to be submitted. On 14 December 2022, the applicant submitted various documentation, including confirmation of the third named applicant’s Australian citizenship. The Tribunal has duly considered all submitted material.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. However, the Tribunal also refers this matter for the consideration of Ministerial Intervention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl 482.212(1).

   Requirement for an approved nomination

8. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and it has not ceased.

9. At the review hearing, the applicant confirmed she did not have an approved nomination associated with her visa application. The Tribunal raised with her that this evidence might tend to suggest she does not satisfy the requirements for the Subclass 482 visa, inviting her comment. The applicant agreed she had no nomination. The applicant advised she was nominated for the Subclass 482 visa by the Pacific Institute of Training Pty Ltd (‘the nominator’). The applicant worked for the nominator from around October 2018 to around November 2019 when the company ceased trading. Since that time, the applicant has secured casual employment as an Education Adviser with another employer. The applicant indicated her employer was willing to nominate her for an employer nominated visa, however given her Bridging Visa status that is not currently possible.

10. The applicant has three children born in Australia, respectively in 2012, 2019 and 2022. She is the primary caregiver to those children and is employed on a casual basis. The eldest child became an Australian citizen in December 2022. The applicant’s husband works in Accounts for a well known company and has done so for around ten years. He informed the Tribunal that he maintains this employment, although with reduced hours.

11. Following careful consideration of the evidence, including the applicant’s confirmation at hearing that she does not have an approved nomination, the Tribunal is not satisfied there is an approved nomination of an occupation relating to the applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl 482.212(1) are not met.

12. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

13. Given that the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 457 or Subclass 482 visa, it follows that the second and fourth named applicants do not satisfy the requirements of cl 482.312. The Tribunal so finds.  Additionally, as the third named applicant is now an Australian citizen, he is not eligible for the grant of a visa, so the decision with respect to him will also be affirmed. The Tribunal also notes the youngest child of the applicant Master Muhammad Yahya Ansari, who was born in Australia in mid-2022, is a member of the family unit but is unable to be included as a secondary visa applicant as he was born after the primary decision was made.  

    MINISTERIAL INTERVENTION

14. The evidence before the Tribunal indicates the applicant is the mother of three children born in Australia. The third named applicant is now an Australian citizen, having attained the age of ten years in December 2022. The applicant is the primary care giver to her children and works casually as an Education Adviser for her new employer. This current employer apparently wishes to nominate the applicant for an employer nominated visa, however this cannot proceed with the applicant’s present Bridging Visa status. The second named applicant continues to work in Accounts. Both the applicant and the second named applicant have made several attempts to obtain permanent residence through employer nominated or skilled visa pathways however for various reasons, including a measure of poor luck such as the introduction of the COVID-19 pandemic, they have been unsuccessful.

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

16. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s 351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review Tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state. Further factors include exceptional economic, scientific, cultural or other benefit which would result from the person being permitted to remain in Australia; or circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular case.

17. The Tribunal considers that strong compassionate circumstances exist in the present matter, as the Australian citizen third named applicant is aged ten years but none of his immediate family hold a substantive visa. Additionally, the Tribunal is satisfied the applicant attempted to secure permanent residence, through the employer nominated pathway, but suffered misfortune as her nominator ceased trading. The Tribunal considers this situation to produce an unfair and unreasonable result, which is to the detriment of not only the applicant but also to her family, including her Australian citizen son.

18. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the power pursuant to s 351 of the Act with regard to the applicant.

    decision

19. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    K. Chapman
    Member