Hausner (Migration)

[2018] AATA 2983

Hausner (Migration) [2018] AATA 2983 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Sarah Claudia Hausner

CASE NUMBER:  1719747

DIBP REFERENCE(S):  BCC2017/2595805

MEMBER:Denise Connolly

DATE:3 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 03 July 2018 at 9:56am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian Federal Police (AFP) check – Not undertaken 12 months immediately before day of application – Applicant’s important role in biodiversity project – Exceptional economic and scientific benefit to Australia – Referred for ministerial intervention – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.213

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 15 August 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 July 2017. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.213 of Schedule 2 to the Regulations because the applicant did not provide evidence of having applied for an Australian Federal Police (AFP) check during the 12 months immediately before the day the application was made.

4. The applicant appeared before the Tribunal on 14 May 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence relating to police checks

6. Clause 485.213 requires that when the visa application was made, it was accompanied by evidence that the applicant, and each person included in the application who is at least 16, had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that when the applicant lodged the visa application on 21 July 2017 she declared that she had not applied for an AFP check in the last 12 months. The Tribunal has considered the visa application which confirms this is correct.

8. When making the review application on 28 August 2017 the applicant provided a copy of her AFP National Police Certificate – Complete Disclosure dated 16 August 2017 certifying there are no disclosable outcomes recorded against the applicant. The applicant also provided documents relating to other visa requirements including evidence regarding her PhD which she completed at the Australian National University, and her IELTS test results in which she scored 7.5 for listening, 8.5 for reading, 7.0 for writing and 9.0 for speaking.

9. At the hearing the Tribunal explained the requirements of cl.485.213. The applicant confirmed she made the visa application without the assistance of a migration agent. She indicated she understood that she does not meet a requirement of the law.

10. In this case the applicant did not apply for her AFP check until after she made her visa application. She acknowledged this in her visa application and at the hearing. Unfortunately the online visa application system allowed her to proceed with the application, even though she clearly did not meet a requirement.

11. In these circumstances the Tribunal is not satisfied the applicant had applied for an AFP check during the 12 months immediately before the day the application was made.  Accordingly the Tribunal is not satisfied that, when the application was made, it was accompanied by evidence that the applicant had applied for an AFP check during the 12 months immediately before the day the application was made.

12. Therefore the applicant does not satisfy cl.485.213.

13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review is affirmed.

    Recommendation for ministerial intervention

14. At the hearing the applicant explained that she is now occupying a senior position as an Analyst Programmer, Innovation Officer for the Barrow Island Quarantine Management System project, the largest biodiversity project in Australia. It is in collaboration with Murdoch University, Chevron Australia and the Department of Agriculture. The project has adopted her data modelling and data-mining tools which she developed in her PhD, and involves high level data analysis and genetic testing. Essentially Chevron wants to access gas but must prove that certain species will not be disturbed. The applicant believes it is in the interests of Australia that she remain here to work on this project, in which she plays an intrinsic role. She invited the Tribunal to contact by phone Dr Andrzej Kilian, her employer and the director of Diversity Arrays Technology Pty Ltd. The Tribunal accepted he will attest to her contributions to Australia through her skill set and abilities. The Tribunal however asked the applicant to provide to it further information in writing so that it could consider whether to recommend that the Minister intervene in her case.

15. After the hearing the applicant provided to the Tribunal a letter from Professor Simon McKirdy, Director Harry Butler Institute, Murdoch University who confirmed that the applicant plays an important role in a project of national significance. She is providing exceptional scientific benefit to Australia through her critical role in the project to support the Barrow Island Quarantine Management System (QMS), the largest non-government quarantine initiative in the world. He explained that this system satisfies the ministerial approval conditions placed on the Chevron Gorgon Gas Project and supports its continuing license to operate. The project is the largest liquefied natural gas project in Australia and employs thousands of Australian workers. The applicant has a unique skill set and plays a crucial role as the analyst/programmer, in developing the high throughput diagnostics that Chevron Australia need to support the Barrow Island QMS. As the Director of the Institute he is concerned that the loss of the applicant to biosecurity would disrupt their efforts to reduce the very high resource intensity of the Barrow Island QMS for Chevron. Her continuing to work in Australia on the project will ensure that the project will operate at the lowest possible cost and remain competitive internationally.

16. The applicant also provided written submissions from Dr Andrzej Kilian, Director, Diversity Arrays Technology, dated 24 May 2018 who also writes in support of ministerial intervention to grant the applicant a work visa due to the significant scientific and economic merit that her work brings, not only for his company but in general for Australia. He explains that the applicant is a qualified analyst programmer who, through her previous training and work placements in both engineering and life science, has acquired a very unique skill set. She possesses exceptional expertise in developing novel analysis methods for high dimension genetic data and has been a full-time employee in the company since May 2017. She is involved in making significant contributions to several projects of substantial national and international importance, for example, CSIRO’s long-term effort on monitoring the Australian oceans’ tuna population and a World Bank/Bill Gates Foundation initiative to determine the purity of specially bred crops in Africa to deal with world hunger. Her role at Diversity Arrays Technology focuses on gene-marker, data-mining and species identification of Chevron’s Gorgon Gas Project QMS specimen collection through genome profiles derived from the agency’s unique method. Chevron has outsourced this critical aspect of its biosecurity operations which are binding to satisfy ministerial conditions under the EPBC Act and permit export of resources from the Natural Reserve Barrow Island. She has led the client’s data analytics from the start and developed and implemented a complementary data-mining procedure and platform that allows her to extract genomic information. Her expertise in extracting information and interpreting the complex genome profiles, comparing them to the reference library she has built, is essential for the continuance of the project. Her departure would cause a severe disruption to Chevron’s statutory biosecurity efforts and jeopardise the scheduled progress of the project as a whole. He strongly supports any intervention on her behalf so that she can continue to work in Australia.

17. The applicant also provided a letter from Johan van der Merwe, Quarantine Manager, Chevron Australia, dated 23 May 2018 who writes to emphasise the critical role the applicant plays as the analyst programmer for the bio-analytics pipeline for quarantine management of the Gorgon Gas Project on Barrow Island. He also explains that the project is one of the world’s largest LNG projects, in the largest single resource industry’s history. It has the capacity to produce 20,000 barrels of condensate per day and it will remain an important pillar of Australia’s economy for decades to come. He states that it is estimated that, between 2009 and 2040, the project will not only add about $400 billion to Australia’s gross domestic product, it will also create 60,000 direct and indirect full-time positions and incur taxation revenue of $69 billion. He explains that Chevron is committed to ensuring excellence in protecting native biosphere and species and has implemented the Barrow Island QMS, the largest non-government quarantine initiative in the world. The applicant has an excellent track record in developing data-mining techniques for high throughput testing of genetic and genomic material. She has developed a unique genome analysis pipeline for the management system that allows Chevron to process large amounts of samples from specimens collected in the monitoring stations, identifying individual species through their gene profiles and raising alert if nonindigenous species should be present. Her expert knowledge and continuous participation as a developer/analyst for routine sampling are crucial for the operation of the QMS and her departure would severely disrupt the biosecurity measures put in place to ensure operation on the island in accordance with the applicable environmental regulations.

18. The Tribunal has considered the material from Professor McKirdy, Dr Andrzej Kilian and C J van der Merwe and it is satisfied that the applicant plays a very important role in a project of great significance for Australia’s economy.

19. Having considered the Minister’s guidelines on ministerial powers, the Tribunal is satisfied that, because of the applicant’s knowledge and expertise, exceptional economic and scientific benefit would result from her being permitted to remain in Australia. On this basis the Tribunal has decided to recommend that the Minister consider intervening in the applicant’s case, and make a favourable decision which would allow her to continue to work for Diversity Arrays Technology on the Barrow Island Quarantine Management System.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Denise Connolly
    Member