Chin (Migration)

[2022] AATA 2426

Chin (Migration) [2022] AATA 2426 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Chun Mook Chin

Ms Phaik Hoon Tan

Mr Magnus Jun Yu Chin

Ms Mavis En Xin Chin

REPRESENTATIVE:  Mr James Shin

CASE NUMBER:  1908077

HOME AFFAIRS REFERENCE(S):          BCC2019/338533

MEMBER:Katie Malyon

DATE:16 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 16 June 2022 at 3:38 pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – solid plasterer – subject of approved position nomination – combined hearing with review of refusal of related nomination application – nomination refusal affirmed – members of family unit – compassionate circumstances – one child an Australian citizen – ongoing skills shortages in work sector – applicant and wife directors of sponsoring company – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 353, 359A, 359C, 360(3), 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)(a)

Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASE

Hasran v MIAC [2010] FCAFC 4

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 27 March 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 February 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).  Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ as well as the criteria of one of 3 alternative streams: the Short-term stream; the Medium-term stream; or, the Labour Agreement stream.  Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

3. In this case, the primary visa applicant - Malaysian national Mr Chun Mook Chin - is seeking the visa in the Medium-term stream to work in the nominated occupation of Solid Plasterer ANZSCO 333212.

4. The delegate in this case refused to grant the visas on the basis that Mr Chin did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because his prospective sponsoring employer, CPMH Interior Lining Pty Ltd (the Company), did not have an approved nomination in place for him.  At the time of the delegate’s decision, Mr Chin was not the subject of an approved nomination.

   Hearing - 13 May 2022

5. The Company directors Mr Chin and Ms Phaik Hoon Tan (Mr Chin’s wife) appeared before the Tribunal on 13 May 2022 to give evidence and present arguments on behalf of the applicants at a MS Teams video hearing.  The Tribunal’s hearing was conducted as a combined hearing with the Tribunal’s review of the delegate’s refusal of the Company’s nomination (Tribunal Case No. 1906403).  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Mr Chin and Ms Tan used the interpreter on rare occasions only. 

6. The applicants were represented in relation to the review by their immigration lawyer, James Shin of Agape Henry Crux, who also attended the hearing.  After the hearing, the representative provided a range of documentation including, relevantly, a copy of the NSW Birth Certificate of the fourth named applicant, Ms Mavis En Xin Chin, confirming her birth on [Date] at Blacktown Hospital together with a copy of her Australian Citizenship Certificate confirming Ms Chin acquired Australian citizenship on 26 October 2021. 

7. Subsequently, on 26 May 2022 the Tribunal affirmed the delegate’s decision to refuse the Company’s nomination. 

   Tribunal’s 359A Letter

8. On 26 May 2022, the Tribunal wrote to the applicants via their representative pursuant to s 359A of the Act. In its letter, the Tribunal noted that the Company’s application for review of the delegate’s decision was affirmed by the Tribunal on 26 May 2022 and that there is currently no approved nomination by the Company in relation to Mr Chin.

9. The Tribunal stated that it appeared Mr Chin is not the subject of an approved nomination as required by cl 482.214 of Schedule 2 of the Regulations and, as such, the decision under review must be affirmed. The applicants were requested to provide the Tribunal with comments or a response to this information by 15 June 2022. In its letter, the Tribunal advised that, if their comments or response was not provided in writing by 15 June 2022 or, if a request was not made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. No comments or response has been provided by the applicants within the prescribed period, and no extension of time had been requested. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, they are not entitled to appear before the Tribunal. The effect of s 363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 4.

11. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that the primary visa applicant Mr Chin meets the relevant requirements of cl 482.212(1)(a) of Schedule 2 to the Regulations is likely to be forthcoming, whether the applicants have already had a fair opportunity to provide the relevant information or documentation or, in the alternative, they have requested an extension of time in which to do so, and the significance of the information or documents to them.

12. In the circumstances of this case, in particular, the fact that Mr Chin and Ms Tan appeared before the Tribunal on 13 May 2022, the Tribunal considers that the applicants have had sufficient time in which to address the issue arising on review, that is, whether Mr Chin is the subject of an approved nomination or, in the alternative, seek an extension of time in which to provide some evidence in support of such a claim. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s 353 of the Act and s 2A of the Administrative Appeals Tribunal Act 1975.

13. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information, comments or response from the applicants in accordance with s 359C of the Act.

14. For the following reasons, the Tribunal has decided that the decision under review must be affirmed. The Tribunal has also considered whether, consistent with s 351 of the Act and as canvassed by the representative at the hearing on 13 May 2022, it should refer this matter to the Minister for consideration as to whether it is in the public interest to substitute a more favourable decision for the applicants.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the primary applicant, Mr Chin, meets the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

16. In summary, cl 482.212(1) of Schedule 2 to the Regulations requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

17. In this case, the nomination identified in the applicants’ visa application was the nomination made by the Company in respect of the position of Solid Plasterer ANZSCO 333212 for the primary applicant, Mr Chin. The Company’s nomination was refused by the Department on 25 February 2019 and, as a consequence, the applicants’ Subclass 482 visa application was refused. Subsequently, the Company applied to the Tribunal for review of the delegate’s decision to refuse its nomination. However, on 26 May 2022 the Tribunal affirmed refusal of the nomination made by the Company in respect of Mr Chin as Solid Plasterer ANZSCO 333212. In these circumstances, as the nomination application made by the Company to which Mr Chin’s Subclass 482 application relates has not been approved, it follows that he does not meet the criteria in cl 482.212(1)(a) of Schedule 2 of the Regulations.

18. For this reason, the requirements in cl 482.212(1) are not met.

19. Since the requirements that must be met by a person seeking a Subclass 482 visa have not been met, the Tribunal finds that the decision under review must be affirmed.

20. The applications of the second and third named applicants are based on their being members of the family unit of a person who holds Subclass 482 visa.  As Mr Chin does not meet the primary criteria, these applicants do not meet the criteria for grant of the visa.  Accordingly, the Department’s decision to refuse the application of the remaining applicants must also be affirmed.  The Tribunal notes it has no jurisdiction in relation to the fourth named applicant as she is now an Australian citizen. 

    Is this an appropriate case to refer to the Minister?

21. Having found that the delegate’s decision must be affirmed because the primary applicant Mr Chin does not meet cl 482.212(1) of Schedule 2 of the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister.

22. 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 consistent with s 351 of the Act.

23. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of the power under s 351 of the Act, nor is there any statutory power vested in the Tribunal to make a binding recommendation in this regard. The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether s/he is requested to do so by the applicant, or any other person, or in any other circumstances.

24. The Minister has issued guidelines explaining the circumstances in which s/he may wish to consider 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 (emphasis added).  The circumstances which may be unique or

    
    

    exceptional in this case include, relevantly:

    ·strong compassionate circumstances that, if not recognised, would result in serious ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or permanent resident; and,

    ·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia (emphasis added).

    [1] >

    In addition, the Minister’s guidelines in relation to all cases referred to by the Tribunal under s 351 of the Act state that the Department is required to provide information on any other relevant issues including:

    ·information about a person’s history of compliance with Australian laws, including immigration laws; and,

    ·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia.

25. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Ministerial Guidelines is that the case should involve unique or exceptional circumstances.  The Minister has also indicated where it would be inappropriate to bring a matter to his attention, none of which apply in this case.

26. During the course of the hearing held on 13 May 2022, Mr Chin informed the Tribunal that his daughter, the fourth named applicant Ms Mavis En Xin Chin, is now an Australian citizen.  The representative added that, in the event the Company’s review application is unsuccessful before the Tribunal such that the applicants’ Subclass 482 visa review application would also be unsuccessful, it is the applicants’ intention to seek Ministerial intervention in their case.  As noted above, after the hearing the representative provided a copy of the NSW Birth Certificate of Mavis En Xin Chin confirming her birth at Blacktown Hospital on [Date] as well as a copy of her Australian Citizenship Certificate which confirms that Mavis En Xin Chin acquired Australian citizenship on 26 October 2021.  This is consistent with s 12(1)(b) of the Australian Citizenship Act 2007. 

27. The Tribunal has considered the representative’s comment that the case warrants referral to the Minister on the basis of the strong compassionate circumstances in this case that, if not recognised, would result in serious, ongoing harm and continuing hardship to an Australian family unit where at least one member of the family is an Australian citizen.  The Tribunal accepts that Mavis En Xin Chin is an Australian citizen, and that she has grown up in Australia since her birth here.  It also accepts that it would be preferable for 10-year-old Ms Chin to remain in Australia together with her parents and her 8-year-old brother Magnus Jun Yu Chin as a family unit.

28. In addition, the Tribunal has considered whether exceptional economic or other benefit would result from Mr Chin being permitted to remain in this Australia.  The National Skills Commission has identified that work shortages are especially common among the Technicians and Trades worker occupations.[2]  Relevantly, the Commission’s findings indicate that Skill Level 3 Occupations, which includes Mr Chin’s occupation of Solid Plasterer ANZSCO 333212 have the largest proportion of shortages compared to other occupations nationally.  Further, not only is there a shortage of Plasterers across Australia but also the most in-demand Plasterers are those, like Mr Chin, who have specific industry or technical experience.[3]  In addition, the Tribunal notes that in 2020, the Construction Industry Reference Committee identified great difficulty in attracting apprentices and trainees to the occupation of Solid Plasterer.[4]  The occupation of Solid Plaster continues to be included on the list of occupations on the NSW Skilled Nominated Subclass 190 visa list.[5]

    [2] Skilled Nominated visa (subclass 190) | NSW Government

29. Furthermore, the representative has helpfully provided extracts from reports confirming Australia’s current and ongoing need for Solid Plasterers including:

    1)Master Builders Australia “Australia’s Most In-Demand Trades” dated 16 May 2021; and,

    2)the Australian Apprenticeship Support Network “The National Skills Needs List”.[6]

    [6] NSNL Final.pdf (australianapprenticeships.gov.au)

30. The factors which cumulatively engage the Tribunal’s consideration as to whether this is an appropriate case to refer to the Minister are as follows:

    ·     Mr Chin and his wife Ms Tan have an Australian citizen child Mavis En Xin Chin;

    ·     Mr Chin’s has trade qualifications including his Certificate III in Wall and Ceiling Lining as well as many years’ experience in the occupation of Solid Plasterer, which is nationally recognised to be in short supply;

    ·     in support of matters for consideration by the Department following referral of a matter to the Minister, the representative has provided information to address Mr Chin’s compliance with Australian laws including taxation and the Company’s compliance with superannuation laws.  Mr Chin has provided Notices of Assessment issued by the Australian Taxation Office confirming his lodgement of tax returns for the years ended 30 June 2019, 2020 and 2021.  The Tribunal has also been provided with evidence of the Company’s compliance with its obligations as an employer regarding payment of superannuation to its employee Mr Chin; and,

    ·     to address the Department’s consideration of the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, the representative notes Mr Chin has been living, studying and working in Australia since 26 January 2011, that is, for more than a decade.  Further, the representative provided Mr Chin’s Pearson PTE Academic English Language score report dated 23 November 2018 in which he scored 78 overall.

31. Having considered information and documentation provided, the Tribunal will refer this case to the Minister for possible consideration by the Minister.  It will forward to the Department documentation provided to the Tribunal by the representative to demonstrate that this case meets the unique or exceptional circumstances in the Minister’s guidelines extracted above.  Further documentation may be provided by the applicants in support of their application to the Minister.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Katie Malyon

    
    Member