BADOC (Migration)

[2023] AATA 2021

BADOC (Migration) [2023] AATA 2021 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jimmy Romeo BADOC
Ms Chatimay Marina BADOC

REPRESENTATIVE:  Ms Fang Liu (MARN: 1463212)

CASE NUMBER:  1926270

HOME AFFAIRS REFERENCE(S):          BCC2018/2799483

MEMBER:Warren Stooke AM

DATE:19 June 2023

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 19 June 2023 at 1:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Carpenter – subject of an approved nomination – short-skilled vocation – unscrupulous behaviour of the nominating sponsor – ongoing and irreversible harm and continuing hardship – unfair and unreasonable results – exceptional economic, scientific, cultural and other benefits – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 July 2018. 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Carpenter – ANZSCO Code: 331211.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the nominated position of Carpenter.

6. The applicants appeared before the Tribunal on 12 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.

7. The applicants were represented in relation to the review.

8. The applicant stated that he had received a copy of the decision from the Department, which he had read. A copy of the decision was provided to the Tribunal with the application for review.

9. The applicant stated that he understood that the visa application was refused because he was not able to satisfy the requirements of a standard business sponsor.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved standard business sponsor for the nominated position of Carpenter.

12. The applicant provided evidence that he was granted a Bridging Visa C on 26 July 2018 with no conditions but does not permit travel.

13. The applicant provided evidence that he holds a Bachelor of Science in Industrial Technology (Furniture and Cabinet Making Technology) from the Philippines that was conferred on 28 March 2005.

14. The applicant provided evidence of an AFP Police check dated 12 September 2017 for a name check only that notes ‘no disclosable court outcomes’.

15. The applicant provided evidence that he has been employed by Glasstech (Australia) Pty Ltd from 1 November 2013 and evidence of the business’s approved SBS from 17 April 2018 to 17 April 2023.

16. The applicant was nominated by Glasstech (Australia) Pty Ltd for the nominated occupation of Carpenter on 17 July 2018.

17. The applicant provided evidence from the Consul for the Philippines in Darwin in support of the nomination dated 7 April 2023.

18. The nominating employer provided correspondence to the Tribunal in support of the applicant and was scheduled to provide evidence at the hearing but did not attend.

19. The Tribunal asked the applicant if he had an approved standard business sponsor and he responded that his working visa had expired and that at the time he was granted a Bridging Visa.

20. The applicant provided evidence that the nominating sponsor, Glasstech (Australia) Pty Ltd, had appealed the decision of Department with the Administrative Appeals Tribunal (AAT) and that he was only informed, the day before the hearing on 12 April 2023, by his representative, that a decision had already been made by the AAT refusing the nomination.

21. The applicant stated that his agent was concerned when his matter was listed for hearing that the nominating employer’s case was not also listed. In this regard, the Tribunal can confirm, as currently constituted, that the Tribunal was requested by the representative for the Tribunal to also list the case for the nominating sponsor, in the absence of knowledge that the matter had already been determined by another Member of the Tribunal.

22. The applicant confirmed in evidence that he was informed by his agent, the day before the hearing, that the nominating sponsors application had already been determined, without the knowledge of the applicant.

23. The applicant provided evidence that he had been employed by Glasstech (Australia) Pty Ltd from 1 November 2013 and was engaged in window restoration and fitting.

24. The applicant stated that he had not been back to his home country since January 2015.

25. The applicant stated that he has no children in Australia but would like to bring his son to Australia.

26. The applicant stated that he did not have anything to go back to if he had to go back to the Philippines and has no job or a home place in the Philippines.

27. The applicant stated that he has come to love Australia and that it is home for him.

    Representative Submission

28. The Representative stated that the applicant had been working in Australia for about 10 years and he is engaged in an occupation with a skill shortage and that his presence is key to the community.

29. The Representative stated that the applicant’s son did not stay in Australia and is now 18 years old and the applicant could not meet family having applied for a Bridging Visa B, which was refused.

30. The Representative was asked by the Tribunal the position concerning a s351 Ministerial Reference and he responded: “We will apply for that one”.

31. The Representative stated that he found out this morning that the company visa application was finalised.

32. The Representative stated that the employer got correspondence concerning a decision last year.

    Nomination of a position

33. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. 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 made as part of the current visa application.

34. 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 located in regional Australia (as defined in reg 5.19)

    ·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.

35. The Tribunal is satisfied on the basis of the evidence that the applicant does not have an approved standard business sponsor for the nominated occupation of Carpenter – ANZSCO Code: 331211.

36. Further, the Tribunal is satisfied that the applicant has been employed by the nominating sponsor since 1 November 2013 based upon the evidence of the applicant and has been engaged in the occupation of Carpenter in the Northern Territory in a short-skilled vocation.

37. The Tribunal is extremely concerned regarding the unscrupulous behaviour of the nominating sponsor, who declined to inform the applicant of the status of the standard business sponsorship nomination, when decided last year by another Member of the Tribunal.

38. Therefore, cl 187.223 is not met.

    Ministerial Reference

39. At the conclusion of the hearing the applicant confirmed to the Tribunal that it was his intention to seek a Ministerial Reference, pursuant to s.351 of the Act.

40. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:  >

    The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

41. The Tribunal considers, in this case, that the application of the relevant legislation does lead to an unfair or unreasonable result for the applicant, and accordingly, has decided to refer the matter to the Minister for consideration.

42. Whilst the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets cl.187.223, the Tribunal finds that a Ministerial Referencefrom the Tribunal pursuant to s.351, would be appropriate in this case, for the following reasons:

    a.The evidence before the Tribunal has demonstrated that the applicant holds a Bachelor of Science in Industrial Technology (Furniture and Cabinet Making Technology) from the Philippines and is employed as a professional Carpenter – ANZSCO: 331211 in the Northern Territory, which has identified labour shortages within that region by for skilled workers where employers can't source an appropriately skilled Australian worker. In this regard, the applicant’s employment has been continuous for a period of almost 10 consecutive years;

    b.The Tribunal notes that the applicant has been seriously misled by his nominating sponsor, who has exploited the applicant’s skills for business purposes without a genuine intent to support the application for a skilled 187 visa being granted;

    c.The applicant has a Bachelor of Science in Industrial Technology (Furniture and Cabinet Making Technology) from the Philippines. As such, the Tribunal is satisfied that the applicant has qualifications commensurate with the requirements to satisfy the nominated occupation of Carpenter – ANZSCO: 331211;

    d.The applicant’s knowledge and expertise are in a profession that has a scarcity of skilled professionals, within the Australian Regional environment, and has skills to support a required contribution to the Australian community and the retention of those skills is considered by the Tribunal to be compelling. In this regard, the Tribunal notes that the occupation of Carpenter – ANZSCO: 331211 falls within Regional Sponsor skills list;

    e.The applicant has been open and honest in his dealings with the Tribunal, and the Tribunal accepts the plight of the applicant, that the employment undertaken with Glasstech (Australia) Pty Ltd has been problematic, based upon the evidence. The harm that would be inflicted upon the applicants and the Northern Territory concerned, should the applicant not be permitted to remain in Australia, would be detrimental to the contribution the applicant could make to the Australian community with his highly sought after skills and experience;

    f.The Tribunal finds that there are strong compassionate circumstances that if not recognised would result in ongoing and irreversible harm and continuing hardship to Australian citizens and permanent residents that would be denied access to the skills, that have the potential to be provided by the applicant. In this regard, the Tribunal accepts that the Northern Territory is a region of Australia that needs skilled professionals to support the community;

    g.The applicant’s application for a Bridging Visa B was refused, which based upon the terms of his current Bridging Visa C has precluded the applicant, on the evidence, from returning to his home country, where he has a son in residence;

    h.The Tribunal is satisfied that the application of the relevant Migration legislation will lead to both unfair and unreasonable results for the applicants.

43. Finally, the Tribunal, whilst acknowledging that the discretion solely rests with the Minister in these matters, recommends that the ‘exceptional economic, scientific, cultural and other benefits’ that would result from the applicant being permitted to remain in Australia, are significant for the reasons outlined herein. As such, the Tribunal recommends that the Minister’s discretion should be exercised in this exceptional and worthy case.

44. 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.

    DECISION

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

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114C (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 to which the application relates is located in regional Australia.

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

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