Briggs (Migration)

[2020] AATA 4100

Briggs (Migration) [2020] AATA 4100 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Karen Mary Briggs
Mr Gary Briggs
Mr Josh Gary Briggs
Ms Emily Catherine Briggs

CASE NUMBER:  1806110

HOME AFFAIRS REFERENCE(S):          BCC2018/249148

MEMBER:Stavros Georgiadis

DATE:17 September 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 17 September 2020 at 7:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Temporary Residence Transition stream – Midwife – over 50 years – age requirements– exempt class of persons –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.221

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 (the Act).

2. The applicants applied for the visas on 15 January 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, 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 Midwife (ANZCO 254111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.221 of Schedule 2 to the Regulations due to age factors (over 50 years) and not being in a class of persons exempt from the age requirements. The delegate also found that the secondary applicants were therefore, not members of the same family unit as the primary applicant.

6. The first and second named applicants appeared before the Tribunal on 17 September 2020 to give evidence and present arguments.

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

8. The Tribunal exercised its discretion to hold the hearing by telephone conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone conference having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary applicant is able to meet cl.187.221 of Schedule 2 to the Regulations relating to age factors or in the alternative, whether she is a member of an exempt class of persons, for the grant of the visas in respect of all applicants as claimed members of the same family unit.

    Age requirements

11. Aa above, at the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements or be in a class of persons specified in legislative instrument IMMI17/058 (Register of Instruments: business visas) cl.187.221. In this case, as the visa application was made on 15 January 2018 (being before 18 March 2018), the applicant must not have turned 50 at the time of application.

12. The applicant’s accepted year of birth is 1963 consistent with the identity documents on the Department’s file and her oral evidence.  In the present case the applicant was therefore, aged 54 years at the time of application made on 15 January 2018.  It follows that she does not meet the age criterion in the legislative instrument for the purposes of cl.187.221(a).

    Exempt class of persons

13. The classes of persons that are exempt from the age requirements are listed in a legislative instrument IMMI 17/058 which is set out (in part) below.  This instrument relevantly, commenced on 1 July 2017.  The instrument is made under sub-subparagraph 5.19(4)(h)(ii)(D) of the Regulations, and under subclause 186.234(3) and paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), and 187.234(a) of Schedule 2 to the Regulations: (bold emphasis added).

14. This legislative instrument sets out the categories of applicants for Subclass 187 (Temporary Residence Transition) visas who are not required to be below the age of 50 at the time of application.  For the purposes of cl.187.221(b) of the Regulations, the following classes of persons are specified:

    … (a) researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who are nominated by Australian scientific government agencies;

    (b) academics who are nominated by an Australian university to be employed at an Academic Level of B, C, D or E in one of the following positions:

    (i) University Lecturer (ANZSCO: 242111); or

    (ii) Faculty Head (ANZSCO: 134411);

    (c) persons who have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for the Subclass 186 or Subclass 187 visa; and whose annual income for each year in the four year period was at least equivalent to the Fair Work High Income Threshold; and

    (d) persons who meet all of the following requirements:

    (i) the person is a medical practitioner (ANZSCO MINOR GROUP 253);

    (ii) the person has been employed as a medical practitioner for a period of at least four years immediately before applying for the Subclass 186 or Subclass 187 visa;

    (iii) during that period the applicant was the holder of a Subclass 457 visa;

    (iv) the person was employed in regional Australia for at least two years during the period of four years; and

    (v) the nominated position is located in regional Australia …

15. The applicant acknowledged in her oral evidence at hearing that she is not a medical practitioner (ANZSCO MINOR GROUP 253), nor in any of the classes of persons listed in the above instrument except with the possibility of the exception in (c) above as she considered that her level of remuneration as a Midwife for each year in the four year period as a holder of a Subclass 457 visa immediately before applying for the Subclass 187 visa was sufficiently high to qualify.

16. At the hearing the Tribunal received oral submissions confirming that the Fair Work High Income Threshold for the relevant period is $145,400 per year.  The Tribunal accepts this submission and also the applicant’s oral evidence that over the 4 years immediately before applying for the Subclass 187 visa, her annual remuneration as a Midwife for each such year ranged between $100,000 and $108,000.

17. As the level of the applicant’s annual income for the material period was below the level of the Fair Work High Income Threshold of $145,400, the Tribunal finds that the applicant is not in any of the classes of persons listed in the relevant legislative instrument IMMI 17/058 that are exempt from the particular age requirement.  Accordingly, the applicant does not meet regulation cl.187.221(b).

18. As neither cl.187.221(a) nor (b) is met by the applicant, therefore, cl.187.221 is not met.

19. 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 by the primary applicant, the decision under review must be affirmed in respect of all applicants seeking to meet the criteria as members (spouse and children) of the same family unit: cl.187.233.

    DECISION

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

    Stavros Georgiadis

    
    

    Member