Belaos (Migration)

[2023] AATA 801

Belaos (Migration) [2023] AATA 801 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Renando Belaos
Mrs Marissa Belaos
Mr Renz Eli Belaos

CASE NUMBER:  2210276

HOME AFFAIRS REFERENCE(S):          BCC2016/1441678

MEMBER:Namoi Dougall

DATE:13 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2023 at 2:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Vehicle Painter – subject of an approved nomination – commenced working for a new employer – exceptional economic benefit – skill shortages in rural and regional Australia – circumstances not anticipated by relevant legislation – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 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 13 April 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 (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 Vehicle Painter.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the delegate was satisfied that the position of Vehicle Painter with his approved nominator Automotive Holdings Group Limited was no longer available as the applicant ceased his employment with the nominating business on 11 October 2019.

6. The applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal also received oral evidence from Mr Slade the director of the applicant’s current employer, Slade & Sons Smash Repairs Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nominated position remained available to the applicant.

Nomination of a position

1. 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.

2. 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.

3. On 13 April 2016 the applicants lodged the subclass 187 visa application the subject of this review in relation the nominated position of Vehicle Painter (ANZSCO 324311). The applicant was to be employed in the position by his approved business nominator, Automotive Holdings Group Limited (the nominating buisness). The application was originally refused by a delegate on 26 November 2018 on the basis that the applicant did not meet Public Interest Criterion 4020. An application was lodged with the Tribunal and on 11 August 2021, the Tribunal (differently constituted) remitted the Subclass 187 visa applications on the bases that the applicant met PIC 4020 for the purposed of reg.187.213.

4. On 19 August 2021, in order to assess the other criteria for a grant of the Subclass 187 visas, the Department requested additional information including a statement from the nominating business that the position of Vehicle Painter was still available.

5. On 3 September 2021, the applicant responded to the Department’s letter of 19 August 2021 by providing a statement from the applicant’s new employer Slade & Sons Smash Repairs Pty Ltd (the new employer) which is located in Longreach, Queensland (the new employer statement). The statement indicated that the applicant has been employed as a fulltime Automotive Spray painter from January 2020 after relocating from Perth, Western Australia. He is in charge of all painting with assistance from other workshop employees. The statement also stated that the position is fulltime for at least 2 years. Further, regional Australia is ‘screaming out’ for qualified tradespersons to allow the continuation of businesses and services to operate in regional centres.

6. On 24 March 2022, the Department sent the applicants a natural justice letter pursuant to sec.57 of the Act. The natural justice letter stated that there was information before the Department that on 8 November 2021, a legal representative of the nominating business notified the Department that the applicant had ceased employment with the nominating buisness on 11 October 2019. The letter also referred to the information in the new employment statement and in the previous Tribunal decision which indicated that the applicant was working for the new employer.

7. The natural justice letter then set out that the associated employer nomination scheme nomination was approved with the approved sponsor which is the nominating business and indicated that the name, ABN and location of the nominating business are different to the new employer. The delegate stated that there are concerns that the current employer is not the approved sponsor and that the position referred to in the associated approved nomination may not still be available.

8. On 8 April 2022, the applicants responded to the Department’s natural justice letter with a statement and a number of documents. The statement indicated that in August 2019 the applicant received a letter from the nominating business where he had worked from 2012 to 2019. Provided with the statement was a letter from the nominating business to the applicant dated 20 August 2019 which stated that due to the operational decision to close City Motor Panel, the position of Spray Painter is not required.

9. The applicant’s letter also stated that the applicant started working at the new employer in October 2019 and became full time in January 2020. Provided with the applicant’s statement was a letter from the nominating buisness dated 31 March 2022 indicated that the applicant commenced full time employment with then on 13 January 2020 after a trial period in November and December 2019. The new buisness was approved as a standard business sponsor for workers on Subclass 482 visas.

10. Other documents were provided in relation to the applicant’s spouse’s work and his son’s schooling. Reference letters were also provided including from the Hon. Mr David Littleproud MP.

11. On 3 November 2022, the Tribunal was asked to postpone the hearing of this matter. In an email from the applicant dated 3 November 2022 it was submitted that the applicant’s work increased coming up to Christmas and his workload is very full. Further, his son is in year 11 in High School, and he is in the middle of exams with school finishing on 2 December 2022. A letter from the new employer dated 2 November 2022 was provided in support of the request.

12. On 3 November 2022, the Tribunal refused to postpone the hearing.

13. On 8 November 2022, the Tribunal was provided with a letter from the new employer dated 8 November 2022 indicating that a Subclass 482 visa application had been lodged together with an application for a skilled assessment. Provided with the new employer’s letter was an acknowledgement of receipt of the applicants’ Subclass 482 visa application dated 2 November 2022. The new employer’s letter also requested that the Tribunal delay its decision until after the new employer’s Christmas close down on 16 January 2023 as the applicant’s son will have finished his Year 11 studies and the applicant hopes he will be able to enrol in year 12.

14. At the hearing the Tribunal explained that as the applicant is not working for the nominating business and the position of Vehicle Painter is no longer available with the nominating buisness.

15. On 5 December 2022, the applicant provided to the Tribunal a letter in which he set out the difficulties he has faced since applying for permanent residency in 2016. Also provided were job sheets and photographs of the applicant’s work at spray painting repaired vehicles for 6 projects.

16. Also on 5 December 2022, the applicant’s new employer provided a submission (the December submission) and supporting information. The submission confirmed that the application commenced working for the new employer on a full time basis on 13 January 2020 following a trial period in November and December 2019. The applicant  was made redundant from his position of 7 years with his nominating buisness which affected the Subclass 187 visa application the subject of this review. The December submission also stated that the position of Vehicle Painter continues to be available with the new employer. The new employer was approved as an Employer Sponsor in December 2019 for workers with Subclass 482 or 494 visas.

17. Document processing in relation to a new visa application had commenced for both employer and employee in early 2020 but issues such as lockdowns and border closures arising from the COVID-19 Pandemic brought uncertainty as to pursuing further action and economic uncertainty. Regional Queensland continues to need qualified trades persons to allow continuation of business.

18. At the hearing the Tribunal explained to the applicant that, section 48 of the Act states that a non-citizen in the migration zone who does not hold a substantive visa and who after last entering Australia was refused a visa, other then certain visas which do not include a Subclass 187 refusal as is the case in this matter, can only apply for a visa of a class prescribed for the purpose of section 48. The classes of visa prescribed do not include a Class RN Subclass 482 visa which the applicant has asked the Tribunal to take account of when making a decision in this review. The applicant stated that he understands

19. Therefore, he does not meet criteria in reg.187.223 for the grant of a Subclass 187 visa.

20. The applicants have 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.

Is this an appropriate case to refer to the Minister?

1. Under s 351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

2. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s 351 of the Act, nor is there any statutory power to make a binding recommendation in this regard.  The power under s 351 of the Act may only be exercised by the Minister personally.  Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

3. The Minister has issued guidelines explaining the circumstances in which consideration may be given to exercising the public interest powers under s 351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:

   §exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

   §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.

   [1] >

   In addition to its consideration of the Minister’s Guidelines referred to above, the Tribunal has also had regard to cl 16.1 – cl 16.5 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews[2] as to whether this is an appropriate case to refer to the Minister. 

   [2] >

   Having regard to the applicant’s circumstances, in particular the applicant’s redundancy, the skill shortages in rural and regional Australia referred to in detail in the submissions set out below and the family’s work and social connections within the Australian community and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

4. The December submission stated that in 2021 there was still uncertainty with lockdowns and border closures by listing challenges faced in 2021 including uncertainty due to lockdowns and border closures and challenges faced in advertising for employees and difficulties in the supply chains. Further, outback travel had increased significantly as Australians holidays domestically and the business services and area of 240,330 km2 covering 5 Shire/Regional Councils. In 2022 the changes arising from the COVID-19 Pandemic continued. Further, the increase in domestic travel has place greater reliance on regional businesses particularly in the new employer’s business which support travellers whose vehicle`s need minor repairs. Delays in obtaining passports for the applicants due to the Philippine Embassy having closed its office in Sydney has delayed the Subclass 482 applications. The applicant’s son has started his HSC year and work has increased for the new employer.

5. The December submission further stated that the new employer has continued to advertise during 2021 and 2022 through: Seek; Indeed; Jora; social media in flood affect areas hoping to attracted affected families who may want to relocate; and local newspapers. The new employer also conducted labour market testing with the assistance of AGR Workforce which included consideration of advertisements on: Adzuna; Seek; Indeed; and the AGR Workforce website. A copy of the AGR Workforce labour market testing report was provided to the Tribunal. The report indicated that from the advertisements placed on the websites of Workplace Australia; Seek; Adzuna; and Indeed, only 12 applicants applied over a 4 month period and of those applicants 10 did not have the necessary experience or qualifications and two were international applicants whose credentials could not be verified.

6. The December submission also stated that the new employer’s application for approval of a nomination for a position was approved on 17 November 2022 and the applicant has lodged a skills assessment application with VETASSESS.

7. Provided with submission in relation to the rural and regional skills shortage in Queensland was a letter from RESQ Plus Pty Ltd (RESQ) and local politicians. The letter dated 17 November 2022 from Chris Hamilton, CEO of RESQ stated that RESQ provides employment and training services to communities in rural and remote areas in Australia. The organisation has since 2016 provided employment programs and has placed 1,500 people in employment in outback Queensland. The letter further states that currently rural and western Queensland are suffering a huge skills shortage which is evident in a number of sectors such as hospitality, trades, services, tourism, accommodation and local government. The impact of the skills shortage has implications for locals and visitors as they travel seek services. The RESQ job board has over 250 positions advertised. In relation to the new employer, the letter stated that they have advertised on the Outback Jobs Board for both an Automotive Panel Beater and Automotive Spray Painter for a number of years and he has been advised that no response has been received from a qualified trades person.

8. The member for Maranoa, the Hon. David Littleproud stated in his letter dated 5 November 2022 that Panel beater and Vehicle Painters are classified as ‘shortage’ on the National Skills priority List (2022). Further, data from the Australian Government Labour Market Insights indicates that the occupation of Panelbeater is expected to have strong increasing demand by 10.6% (1,000 jobs) from 2021 to 2026 and Vehicle Painter will have 2.9% (500 jobs) growth during the same period. These facts together with Longreach’s remote location and very low unemployment rate means that the new employer’s constant difficulties in securing staff is likely to continue. Mr Littleproud also stated that his electorate covers 42%of Queensland and includes the town of Longreach and he is aware of the devastating impact of skills and labour shortages are having on rural and remote businesses. This is the predominant issue for these businesses since the COVID-19 Pandemic even though businesses are doing everything they can to attract Australian skilled workers.

9. Mr Littleproud’s letter referred to the Survey of Employers who have Recently Advertised between July 202 and April 2021 as part of the official Skills Priority List analysis and that the List indicates that Automotive and Engineering Trades Worker employers filled less than half (47%) of advertised vacancies. They received on average only 1.8 suitable applicants and thirty percent of employers revied no suitable applicants. Regional areas only filled about 45% of positions advertised. The National Skills Commission’s Recruitment Experiences and Outlook Survey for October 2022 indicates that the labour market remains tight, recruitment activity high and recruitment difficulty has increased particularly outside of capital cities.

10. Mr Littleproud further stated that due to the above persistent issues, the new employer has turned to overseas recruitment to keep up with vehicle repairs including for Queensland Police and Ambulance Service. However, due to the COVID-19 Pandemic there is a visa backlog. The letter further referred to the Senate Select Committee on Temporary Migration final report delivered in September 2021 which stressed that migration may remain limited for a prolonged period due to COVID-19 Pandemic and flagged that the Australian Government should focus on retaining visa holders currently in Australia.

1. Also provided with the December 2022 submission was a letter from the Member for Gregory, Mr Lachlan Miller MP. Mr Miller also stated that there is a real shortfall of and desperate need for trade qualified staff across the district. The letter referred to both Panel Beaters and Vehicle Painters being on the national skills commission list. Mr Miller also stated that he has seen first hand the contribution visa holders being to small businesses and the local community. Small businesses in regional and remote areas have faced drought and the COVID-19 Pandemic and now business has picked up with self drive holidays there is pressure on the new employer’s business as a smash repairer. The letter also recognises that the new employer is the leading repairer of Emergency Service Vehicles.

2. In relation to the applicant’s spouse, the Tribunal on 5 December 2022 WAS provided with a letter from Ms Sharon Gibson, Residential Manager, Bolton Clarke Pioneers Home, Longreach dated 22 November 2022. Ms Gibson stated in the letter that the applicant’s spouse since 31 January 2020 works part time as a Personal Care Worker. The letter further stated that the applicant’s spouse provides high level care for 59 residents and demonstrates competency by providing safe and ethical person-centred care. The letter further stated that in the current work environment in Aged Care in Australia finding staff is extremely difficult particularly in rural and regional areas where shortages are prevalent and continuing. The Home would like to keep the applicant’s spouse employed for as long as possible as quality staff like her are hard to find.

3. In relation to the applicant’s son the Tribunal was provided on 5 December 2022 with a letter from Vanessa Moller, Principal, Longreach State high School. The letter stated that the applicant’s son has attended the High School since 28 January 2022 and is achieving well in his subject with attendance over 95%. He is also a valuable member of the school community.

DECISION

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

Namoi Dougall

Member

ATTACHMENT A

187.223(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 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.