El Kadi (Migration)

[2018] AATA 590

El Kadi (Migration) [2018] AATA 590 (11 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tani El Kadi
Ms Raymona NASSIF SAM
Ms Clara Maria EL KADI
Mr Elias EL KADI
Ms Tonia EL KADI

CASE NUMBER:  1714575

DIBP REFERENCE(S):  BCC2017/877264

MEMBER:R. Skaros

DATE:11 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2018 at 10:17am

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa - Subclass 186 (Employer Nomination Scheme) – Had turned age 50 – Not in class of persons exempted from age requirement – No power to waive age requirement

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.221, cl 186.221(a), cl 186.221(b), IMMI 15/083, IMMI 17/058

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 Immigration on 22 June 2017 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 to the Department of Immigration for the visas on 6 March 2017. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Pastrycook (351112). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

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

6. The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating employer, Mr Youssef El Kadi, who is also the applicant’s brother.

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

8. The Tribunal notes that a certificate under s.376 of the Act was placed on two folios of the Department’s file. The information contained in these folios include a reference to internal Departmental communication regarding the issuing of a further natural justice letter requesting the applicant provide evidence of his age as the previous letter had not included this request for information. The Tribunal does not consider the certificate to be valid as it does not state a valid ground for public interest immunity nor was the material given to the Departmental officer in circumstances imposing an obligation of confidence. Internal working documents, in the Tribunal’s view, are not sufficient grounds on which to issue such a certificate. The material contained in the relevant folios relate to the issuing a new natural justice letter regarding the requirements for the visa so as to include the requirement regarding the applicant’s age at the time of the application. The applicant was made aware of this requirement during the processing of the visa application before the Department and on review.  The Tribunal proceeds on the basis that the s.376 certificate is not valid and is satisfied that the relevant information in the documents covered by the certificate, which relates to the applicant’s age at the time of application, is information that is already known to the applicant and was discussed with him at the hearing.   

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 applicant meets cl.186.221.

    Age requirements

11. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in the legislative instrument: cl.186.221.

12. The class of exempt persons has been specified in IMMI 15/083, which was the relevant instrument at the time of application. The Tribunal notes however that the current instrument (IMMI 17/058) specifying the classes of exempt persons indicates that the instrument applies to 186 visa applications that have not been finally determined. Having considered the classes of persons specified in both instruments, the Tribunal observes that the instruments provide for the same classes of persons, none of which are applicable to the applicant.

13. In the present case the applicant was aged 51 years at the time of application. He therefore does not meet cl.186.221(a).

14. The instrument provides an exemption from the age requirement for the following classes of persons:

    • Researchers, scientists and technical specialists at the skill level 1 or 2 who are nominated by an Australian government scientific agency.
    • Senior academics nominated by a university in Australia.
    • Subclass 457 visa holders who have been working for their nominating employer for at least the 4 years immediately before applying for their visa and whose annual earnings for each year in that 4 year period have been at least at the Fair Work High Income Threshold (FWHIT).
    • Medical practitioners.

15. The applicant has been employed as a pastry cook by the nominating employer as the holder of a 457 visa. The applicant’s PAYG and income assessment for the year ended 30 June 2015 statements indicates that his annual earning was $53,900 in that year. At the hearing, it was also indicated that the applicant’s annual salary during his employment with the nominator was between $54,000 and $59,000 approximately.  

16. For the following reasons, the Tribunal is not satisfied that the applicant falls within any of the classes of persons exempt from the age requirement. The evidence indicates that the applicant’s annual earnings were not at least that of the FWHIT, which was $138,900 at the time of application. The applicant was not nominated by an Australian government agency as a researcher, scientist or technical specialist. He was not nominated by an Australian university in Australia. He was not a medical practitioner. 

17. As the applicant was not a person in a class of persons specified by the Minister in the instrument he does not meet the cl.186.221(b).

18. Given the above findings, the applicant does not meet cl.186.221.

19. At the hearing the applicant stated that he did not apply for the visa before turning 50 because of his family’s circumstances, particularly his spouse who had experienced depression after the birth of their child and passing of her father. The applicant’s brother, who is also his sponsoring employer, gave evidence that the applicant’s employment was instrumental in the success of his business. He referred the Tribunal to the supporting financial documents which the Tribunal accepted show a consistent cumulative growth in the business’ turnover during the preceding years.  The Tribunal explained to the applicant that it had no power to waive the age requirement and that none of the circumstances mentioned come within any of the specified exemptions. The applicant indicated that he understood.

20. The representative stated that it was the applicants’ intention to make a request to the Minister following the Tribunal’s decision. The Tribunal acknowledges this and notes that it open for the applicants to make a request directly to the Minister under s.351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants if the Minister thinks that it is in the public interest to do so.

    Conclusions

21. 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.

22. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. As they are not members of the family unit of a person who meets the primary criteria for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    Member