De Reuck (Migration)

[2023] AATA 159

De Reuck (Migration) [2023] AATA 159 (25 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jason Peter George De Reuck
Mrs Natasha De Reuck
Mrs Louise Sinclair
Master Dylan Desmond De Reuck
Miss Caitlyn Dominique De Reuck

REPRESENTATIVE:  Mr Adolf van Zyl (MARN: 9795353)

CASE NUMBER:  1922382

HOME AFFAIRS REFERENCE(S):          BCC2018/104894

MEMBER:P. Maishman

DATE:25 January 2023

PLACE OF DECISION:  Perth

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

Statement made on 25 January 2023 at 4:13pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cafe or Restaurant Manager – applicant had turned 50 – previous employment in the nominated position – occupation and salary exemptions – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.221, 186.311

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

2. The applicants applied for the visas on 8 January 2018. 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 (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 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 Temporary Residence Transition stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.221 of Schedule 2 to the Regulations because he had turned 50 and was not a person in a class of persons specified by the Minister.

6. The applicants appeared before the Tribunal on 8 December 2022 to give evidence and present arguments. The Tribunal declined to hear from Mr Damien Jacquelin, the applicant’s employer. Mr Jacquelin was identified to give evidence of the applicant’s role and importance to the business. The Tribunal does not consider there is any dispute about the applicant’s capability to undertake his role. The Tribunal acknowledges and accepts the comments made by Mr Jacquelin in his written letter of support.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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.

8. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it a copy of the Department’s file. The applicant declared on his visa application he was nominated for the position of Café or Restaurant Manager by The Press Café. His only employment undertaken in the 10 years prior to the application was the nominated position from 1 April 2014 to 16 December 2017. The applicant did not claim to have any employment registration, licencing or professional membership.     

12. The applicant gave the Tribunal a copy of the delegates decision with his request for review. The Tribunal received submissions dated 23 September 2022 and other documents including a letter of support from the sponsor dated 14 September 2022, pay summaries from 2017 to 2022 financial years and various letters of nomination and previous visa approval letters.

13. The issue in the present case is whether at the time of application the applicant had not turned 50; or was a person in a class of persons specified by the Minister as exempt for the age requirement.

    Age requirements

14. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements: cl 186.221(a); or be in a class of persons specified in the relevant legislative instrument: cl 186.221(b).

15. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

16. The applicant recorded on his visa application made on 8 January 2018 he was born on 1 February 1967 and provided copies of his birth certificate and passport that confirm that information. The Tribunal finds that at the date of application, the applicant had turned 50 at the time of application.

17. Therefore, the requirement in cl 186.221(a) is not met.

18. The Tribunal has considered if the applicant meets the alternative requirement in cl 186.221(b).

19. The Tribunal summarises the applicant’s representative’s written submissions dated 23 September 2022 as follows. The applicant held a Subclass 457 visa on 18 April 2017 and was in Australia working for his nominating employer for at least 12 months between 1 February 2020 and 14 December 2021. The representative gave the Tribunal copies of legislative instrument LIN 22/047 and the associated explanatory memorandum and contended:

    …that the Migration (Age exemption for subclass 186 (Employer Nomination Scheme) visa) Amendment Instrument (LIN 22/047) 2022 means that from 1 July 2022, “Legacy 457 workers” will continue to have a pathway to permanent residency under the temporary residence transition stream despite no longer meeting conventional age restrictions.
    Importantly, no age limit has been specified in the instrument, providing a “limitless” pathway to permanent residence for employees in this cohort.
    …
    We therefore submit the applicant now meets the requirements of the amended Regulation 186.221(b) of Schedule 2 WHICH OPERATES RETROSPECTIVE, and the visa refusal should be set aside with the necessary direction to be made by the AAT - MRT Division

20. The Tribunal has considered which instrument is the relevant instrument for the purposes of cl 186.221(b).

21. The Tribunal observes LIN 22/047 did not repeal either IMMI 17/058 or LIN 19/216. LIN 22/047 amended the provisions of LIN 19/216. Item 9 of Part 3 of LIN 19/216 describes the application and transitional provisions and says it applies in relation to applications for a visa made on or after 16 November 2019. In the present case the visa application was made on 8 January 2018 and neither the provisions of LIN 22/047 nor LIN 19/216 have any application.

22. The relevant instrument for the purposes of cl 186.221(b) in this application is IMMI 17/058. Item 13 of Part 4 of that instrument says that it applies for subclass 186 visas made on or after 1 July 2017. Despite IMMI 17/058 being repealed by IMMI 18/045, Part 2 of IMMI 18/045 provides that IMMI 17/058 continues to apply to relevant visa applications made before 18 March 2018.

23. The applicant declared on his visa application that he was seeking an age-related exemption and had been employed with his sponsor for the last four years and with a salary equivalent to the Fair Work High Income Threshold[1].

    [1] Since 30 June 2010 the High Income Threshold Amount has exceeded $108,300 - - accessed 15 November 2022.

24. Relevantly, Item 11 of IMMI 17/058 specifies certain medical, academic and scientific specialists or certain subclass 457 visa holders whose income exceeds the Fair Work High Income Threshold are classes of persons not required to be below the age of 50 at the time of application.       

25. The applicant does not claim to be a researcher, scientist or technical specialist at the ANZSCO skill levels one or two, or that he is nominated by an Australian scientific government agency. The applicant doesn’t claim to be an academic nominated by an Australian University to be employed at an academic level of B, C, D or E as a university lecturer or faculty head. The applicant’s financial year pay summaries from 2017 onwards do not indicate the applicant’s annual salary was at least equivalent to $108,000. The applicant does not claim that in the four years immediately before applying for the visa his annual income in each of the four year period was at least equivalent $108,000. The applicant does not claim to be a medical practitioner.

26. The is no evidence before the Tribunal that the applicant is in a class of persons specified in IMMI 17/058 for the purposes of cl 186.221(b).

27. The Tribunal finds the applicant is not in a class of persons specified by the Minister in the relevant instrument IMMI 17/058 who are not required to be below the age of 50 at the time of their visa application.

28. Therefore, the requirement in cl 186.221(b) is not met.

29. Accordingly, the requirements of cl 186.221 are not met.

30. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

31. The second, third, fourth and fifth named applicants have made no claims to satisfy the primary visa criteria and are included as members of the first named applicant’s family unit. The second, third, fourth and fifth named applicants are not members of the family unit of a person who holds a subclass 186 visa and do not meet the requirements of cl 186.311. 

32. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

33. The applicant told the Tribunal his children had been brought up in Australia for the last nine years. He has two sisters and a brother who reside in Australia. He has no family, employment or accommodation to return to if he cannot remain in Australia. The applicant’s representative submitted there would be significant financial harm caused to the applicant’s employer given the loss of his employee and this would also impact other employees.

34. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal does not consider the circumstances raised by the applicant are unique or exceptional as envisaged in the ministerial guidelines.       

35. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    P. Maishman
    Member