Binti Abu Bakar (Migration)

[2020] AATA 2551

Binti Abu Bakar (Migration) [2020] AATA 2551 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Fazilah Binti Abu Bakar
Mr Azlan Bin Ismail
Miss Amani Faqihah Binti Azlan
Miss Amani Fakhirah Binti Azlan
Miss Amani Farhana Binti Azlan
Master Muhammad Farihyn Bin Azlan
Master Muhammad El Fawwaz Bin Azlan

CASE NUMBER:  1923923

HOME AFFAIRS REFERENCE(S):          BCC2019/2438408

MEMBER:Nicola Findson

DATE:27 May 2020

PLACE OF DECISION:  Perth

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

Statement made on 27 May 2020 at 9:06am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – age requirement – factors beyond applicant’s control – delay in issue of health work certificate – attempts to lodge application online the day before relevant birthday – system outages – application lodged early on birthday – compassionate and compelling circumstances – benefit to Australian public – medical practitioner – referred to minister for consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 46, (c), 54, 61, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.18, 2.07, 2.10C, 2.12JA, Schedule 1, Item 1114B; Schedule 2, cl 186.231
Electronic Transactions Act 1999 (Cth), s 14A

CASES
Liu v MIBP [2013] FCCA 2208
MIAC v Mon Tat Chan (2008) 172 FCR 193
Russell v MHA [2019] FCAFC 110

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 8 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 May 2019. 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 (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 Labour 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 a General Practitioner (ANZSCO 253111).

5. The delegate refused to grant the visas because she was not satisfied the applicant met cl.186.231 of Schedule 2 to the Regulations. Clause 186.231 requires that at the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in legislative instrument IMMI 18/045: cl.186.231. (In this case, as the visa application was made on or after 1 July 2017 the applicant must not have turned 45 at the time of application.) The delegate found that the applicant was 45 at the time of application, and she was not in a class of persons specified by the Minister.

6. On 27 August 2019, the review applicants applied for review of the delegate’s decision. The Tribunal was provided with a copy of the delegate’s decision record for the purposes of the review.

7. The applicants were represented in relation to the review by their registered migration agent.

8. During the review process, the applicants’ representative provided the Tribunal with material in support of the review application, including a written submission.  The submission indicates that Honeywell Health Medical Group Pty Ltd applied for approval of a nomination in relation to the applicant on 6 May 2019 and this application was approved on 17 May 2019.  It is claimed that several attempts were made to lodge the related visa application (the subject of this review) via the Department’s online visa lodgement portal system on 7 May 2019, when the applicant did satisfy the age requirement.  However, because of “sporadic and intermittent system outages” that persisted throughout the entire day, completing the application was impossible and these attempts were unsuccessful.  It is submitted that because of these technical issues, the application was only able to be registered via the Department’s online system on the day of the applicant’s 45^th birthday, 8 May 2019.    

9. It is submitted that before the application was lodged, early on 8 May 2019, the representative telephoned (and subsequently emailed) the Department’s Global Feedback Unit to explain the difficulties she had encountered with lodging the application.  She claims she was advised by a Departmental officer to proceed with the application and payment lodgement and that the issue would be investigated internally.  She also claims she was told that the application “stood a good chance” because the associated nomination application indicated there was an intention to lodge prior to the applicant turning 45 years of age.

10. It is submitted that notwithstanding the representative informing the Department of the technical difficulties that had been encountered while attempting to lodge and pay for the application, both by telephone and in writing on 8 May 2019, the applicant was invited by the Department on 24 May 2019 to comment on the age requirement for a subclass 186 visa in the Direct Entry stream.  The applicants provided a response, which explained the technical issues preventing the application being lodged prior to the applicant’s 45^th birthday and included the representative’s correspondence with the Department’s Global Feedback Unit. However, notwithstanding the applicants’ response, the delegate refused the visas.

11. The Tribunal was provided with evidence, in the form of screenshots of the Department’s online portal taken at various time on 7 May 2019 as well as the written correspondence between the representative and the Department about the technical difficulties encountered with its online application system, in support of the above claims.

12. On 21 January 2020, the Tribunal wrote to the review applicants by letter addressed to their registered migration agent, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 20 February 2020. However, prior to the scheduled hearing, the Tribunal received correspondence from the review applicants advising that given the issue to be considered by the Tribunal was a technical one, they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

13. The Tribunal did confer with the applicants representative and allowed a further written submission to be provided to it before proceeding to a decision on this matter. This was received by the Tribunal on 10 March 2020.  The submission that the applicants were prevented from making a valid application prior to 8 May 2019 because of a system error - a factor beyond their control – was repeated to the Tribunal.  In addition it was claimed that the applicants were unable to apply for their visas prior to 7 May 2019, because there was a delay in a Health Work Certificate (which from 11 March 2019 was required to accompany nomination applications) being issued to the applicant’s nominating employer.  It was claimed that although a Health Work Certificate was issued by the Department of Health to Honeywell Medical Group Pty Ltd on 15 March 2019, it contained an error and the amended certificate was not received until 6 May 2019.  It is submitted that this was another factor outside the applicants’ control.

14. The representative submits that s.61 of the Act appears to give the Tribunal power to prescribe different time limits.  It is also submitted that in this case, pursuant to s.54 of the Act, the applicants should be afforded natural justice on the basis that but for the malfunctioning online application system of the Department, the applicant would have satisfied the requirements of cl.186.231.

15. It is also submitted that there are compassionate and compelling circumstances present in this matter.  It is submitted that the applicant, as a General Practitioner, works in a highly skilled position which (according to Job Outlook) has strong job growth.  It is submitted that enabling the applicant to maintain practising her profession in Australia would, in turn, benefit the Australian public. 

16. It is submitted that the applicant’s 5 children – the third, fourth, fifth, sixth, and seventh named applicants –are attending school; excelling at their studies; and are excited about a future in Australia. The applicant’s eldest daughter is currently in Year 12 and hopes to study Dentistry at University.  It is submitted that the applicants uncertain visa status has been emotionally disruptive for the entire family.

17. On 28 April 2020, the Tribunal received additional information from the applicants, which raises an additional compelling circumstance in this matter.  The information, including news articles, sets out that health authorities in Australia have announced that additional health practitioners are required to aid the fight against Covid-19, and to relieve the pressure on those already working in the system.  In light of the current Covid-19 pandemic, the Tribunal is urged to consider a favourable outcome for the applicants, and to enable the applicant to continue working to protect the health of Australians particularly at this time.

18. The Tribunal has carefully considered the written submissions made on the applicants’ behalf.  The Tribunal has significant sympathy for the situation of the applicants and acknowledges the evidence before it that but for the technical difficulties the representative encountered with the Department’s online application system on 7 May 2019, this visa application would likely have had a different outcome. 

19. However, for the following reasons, the Tribunal has concluded that it must affirm the decision under review.

20. That said, having regard to all of the evidence before it, including the circumstances of this case, the applicant’s employment situation and the compassionate and compelling circumstances presented to it, the Tribunal recommends that the Minister exercise his personal discretion to substitute a more favourable decision to that of the Tribunal, and refers the matter to the Minister’s office for consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the applicant satisfies cl.186.231 of Schedule 2 to the Regulations.

22. As set out earlier in this decision, at the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in legislative instrument IMMI 18/045: cl.186.231.

23. The Tribunal is not persuaded by the applicants arguments that in this particular case, it is within the power of the Tribunal to prescribe a different time limit (pursuant to s.61 of the Act) or that a favourable decision should be made (pursuant to s.54 of the Act) because the applicant would have satisfied the relevant criteria for the visa if there had been no system error. The Tribunal notes that its role, in conducting a merits review, is to come to the correct or preferable decision on the basis of the available information before it.  However, it must do so in accordance with the legislation and regulations at the time of its decision insofar as they apply to the date of the applicants’ visa application.  The Tribunal cannot extend its power beyond the application of the legislation and regulations to the facts and evidence presented to it.  The Act and Regulations are very specific as to what is required of an applicant when lodging an application for a Subclass 186 visa, in the Direct Entry stream.  There is no discretion for either the delegate or the Tribunal to find in favour of an applicant where the prescribed primary criteria (in this case cl.186.231) is not satisfied at the time of making the application. 

24. In the present case, there is no evidence before the Tribunal that the applicant falls within a class of persons specified in the relevant instrument.  As such, the applicant is not exempt from the age requirement and, therefore, must not have turned 45 at the time of application.

25. In this case, the applicant turned 45 on 8 May 2019.

26. The applicants’ agent claims that they attempted to lodge the via application online before 8 May 2019, but were unable to do so because of Departmental system error.  Departmental information before the Tribunal indicates that the visa application was lodged with the Department on 8 May 2019.  An email dated 25 July 2019, from the Department’s e-Services Support Helpdesk, states that the representative “eventually proceeded all the way through the application and reached the payment page for the first time (shown by PAYMENT-SENT status) at 9:26am AEST on 8 May 2019. Payment was received by the Department and linked to the application at 12:25pm AEST, then the application successfully lodged with the Department”.  In addition, the record of the online application form states that it was submitted on 8 May 2019 at 12:25.

27. In MIAC v Mon Tat Chan[1] it was found by the majority that a visa application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations that make the application valid.  An application for a visa is only valid if it satisfies the criteria and requirements prescribed under s.46 of the Act.  Further requirements are prescribed by the Regulations including general requirements (r.2.07) and the applicable visa application charges, forms and other requirements (Schedule 1).

    [1] MIAC v Mon Tat Chan (2008) 172 FCR 193 at [10], [55].

28. Items 1114B(1) and 1114B(3)(a) of Schedule 1 to the Regulations and IMMI 15/032 provide that, for an Employer Nomination (Permanent) (Class EN) visa, the approved form is 1408 and the application must be made as an internet application.  A visa application charge is payable in two instalments, the first of which is payable at the time the application is made: item 1114B(2)(a).  The term “internet application” is defined in r.1.03 as an application for a visa made using a form mentioned in paragraph 1.18(2)(b) that is sent to Immigration by electronic transmission using a facility made available to an Internet site mentioned in subparagraph 1.18(2)(b)(ii), in a way authorised by that facility. Paragraph 1.18(2)(b) relevantly provides that an approved form in making an application for a visa can be a set of questions in an interactive computer program that is approved by the Minister for use in making an application for the visa; and made available at an internet site operated under the authority of the Minister.

29. The Tribunal observes that other than r.2.10C, which identifies the time of day an internet application is made, there is no other provision in the migration legislation identifying when an internet application is made or received. In these circumstances, s.14A of the Electronic Transactions Act 1999 (Cth) is relevant and states:

    14A          Time of receipt

    (1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:

    (a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; ..

30. In Liu v MIBP,[2] the Court had regard to s.14A(1) of the Electronic Transactions Act and considered that an application for review is ‘given to’ the Tribunal when it is physically delivered which, in respect of an electronic transmission, means that it must be capable of being retrieved by the Tribunal. Although the Court in Liu was considering the time at which an application was ‘made’ for the purposes of s.347, the Court’s reasoning is relevant to question of when a valid visa application has been made.

    [2] Liu v MIBP [2013] FCCA 2208

31. In Russell v MHA,[3] in relation to a review application to the General Division of the AAT, the Court held that electronic communication only becomes capable of being retrieved by the addressee for the purposes of s.14A(1) when it is electronically received by the addressee at the electronic address specified.

    [3] Russell v MHA [2019] FCAFC 110

32. Having regard to s.14(1) of the Electronic Transactions Act and the above case law, the tribunal considers that the time of receipt of the visa application was when it was physically capable of being retrieved by the Department, that is when it was electronically received by the Department at the electronic address specified. On the basis of the information before it, the Tribunal finds that this occurred on 8 May 2019.

33. In addition, a valid visa application requires that any ‘visa application charge’ or fee that the Regulations require to be paid at the time has been paid: s.46(1)(ba) and (c) of the Act.  As mentioned above, a visa application charge for an Employer Nomination (Permanent) (Class EN) visa is payable in two instalments, the first of which is payable at the time the application is made: item 1114B(2)(a).

34. Regulation 2.12JA specifies the time at which payment of a fee is taken to have been received by the Department in respect of internet applications. It provides:

    2.12JA  Payment of visa application charge for Internet application

    (1)       The visa application charge in relation to an Internet application must be paid by:

    (a)credit card, in accordance with the instructions given to the applicant as part of making the Internet application; or

    (b)funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application; or

    (c)the PayPal system, in accordance with the instructions given to the applicant as part of making the Internet application.

    Note 1:  A credit card surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by credit card: see regulation 5.41A.

    Note 2:  A PayPal surcharge is payable if an instalment, or part of an instalment, of visa application charge is paid by the PayPal system: see regulation 5.41B.

    (2)  If the visa application charge is paid in accordance with paragraph (1)(a), the charge is taken not to have been received until the payment has been confirmed by the issuer of the credit card.

    (3)  If the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form.

    (4)  If the visa application charge is paid in accordance with paragraph (1)(c), the charge is taken not to have been received until the payment has been confirmed by the operator of the PayPal system.

35. Having regard to r.2.12JA and the information provided by the Department’s e-Services Support Helpdesk, the Tribunal finds that the payment of the visa application charge was taken to have been received by the Department on 8 May 2019.

36. Accordingly, as all the statutory requirements for the making of a valid application were not met before 8 May 2019, the Tribunal finds that the applicants did not lodge a valid visa application before 8 May 2019. It follows that the applicant was aged 45 years at the time of application.  The Tribunal also finds that the applicant does not fall within a class of persons specified in the relevant instrument (IMMI 18/045, item 8 of Part 2).

1. Therefore, cl.186.231 is not met.

   Conclusion

2. 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.

3. However, the submissions, including the compassionate and compelling circumstances outlined to the Tribunal, and the value with which the applicant is held by her prospective nominating employer may be amenable to a resolution outside the confines of the Regulations. Having regard to the applicants circumstances, in particular: the circumstances which resulted in the applicants failure to make a valid application before the applicant’s 45^th birthday; the applicant’s value to her employer and the employer’s willingness to sponsor the applicant for the subclass 186 visa (and noting that the nomination has been approved); the compassionate circumstances affecting the applicant’s family members; as well as the compelling circumstances arising out of the Covid-19 pandemic and the need for medical practitioners 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.

   DECISION

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

5. The Tribunal refers this matter to the Minister for consideration of the exercise of the Minister’s powers in section 351 of the Act to substitute a decision that is more favourable to the applicants.

   Nicola Findson
   Member