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

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).
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).
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.
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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 2551
Decision Date: 27 May 2020

CaseChat Overview and Summary

This matter concerned an appeal by Binti Abu Bakar against the decision not to grant her an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) direct entry stream. The core of the dispute revolved around the applicant's eligibility for the visa, particularly concerning the age requirement stipulated in the regulations.

The legal issue before the Tribunal was whether the applicant satisfied clause 186.231 of Schedule 2 to the Regulations, which requires applicants in the direct entry stream to meet certain age criteria or fall within a specified class of persons. The applicant argued that she would have met the criteria if not for a system error that prevented her from lodging her application online before her 45th birthday. The Tribunal was required to determine if it had the power to grant the visa despite the applicant not meeting the primary criteria at the time of application, or if the circumstances warranted a referral for ministerial discretion.

The Tribunal found that it was bound by the legislation and regulations in force at the time of the application and did not have the power to extend its authority beyond applying these to the presented facts. It noted that the applicant turned 45 on 8 May 2019, and the visa application was lodged on that date. While the applicant's agent claimed attempts to lodge prior to the birthday were thwarted by system errors, departmental records indicated the application was successfully lodged and payment received on 8 May 2019. The Tribunal was not persuaded that it could prescribe a different time limit or make a favourable decision based on the system error alone, as the applicant did not fall within any exempt class of persons.

Despite affirming the decision not to grant the visa, the Tribunal considered the compassionate and compelling circumstances presented. These included the circumstances leading to the late lodgement, the applicant's value to her sponsoring employer, family matters, and the compelling need for medical practitioners due to the COVID-19 pandemic. Accordingly, the Tribunal referred the matter to the Minister for consideration of exercising personal discretion under section 351 of the Act to substitute a more favourable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in the present case is whether the applicant satisfies cl.186.231 of Schedule 2 to the Regulations. 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. 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. 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. In this case, the applicant turned 45 on 8 May 2019. 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.

Decision

Reasons for decision

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 45th 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 The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. 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 FindsonMember

Ratio Decidendi

Legal Principle Established

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