Hussin (Migration)

[2021] AATA 272

Hussin (Migration) [2021] AATA 272 (9 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hamidah Hussin

CASE NUMBER:  1731727

HOME AFFAIRS REFERENCE(S):          BCC2017/2896077

MEMBER:George Hallwood

DATE:9 February 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 09 February 2021 at 3:13pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – age limit – related position nomination application delayed by employer’s change of name – other administrative errors by employer – visa application made 25 days after applicant’s 50th birthday – strong compassionate circumstances – importance of position and glowing work references – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.221(a)

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 and Border Protection on 4 December 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 13 August 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 Labour Agreement stream.

4.    In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Registered Nurse (Critical Care and Emergency) (ANZSCO 254415)’.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.221(a) of Schedule 2 to the Regulations because she was 50 years of age at the time of application.

6.    The applicant appeared by telephone before the Tribunal on 2 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Gemma Sims, Nurse Unit Manager, Neonates, South Metropolitan Health Service.

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. The applicant was advised in advance that the hearing would be by telephone and offered an opportunity to raise any objections. No objections to a telephone hearing were raised prior to or during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8.    During the hearing the applicant requested time to obtain further submissions. This was granted and further submissions were received and considered in making this decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant met the age requirements for the Temporary Residence Transition Stream under cl. 186.221(a) or the exemptions stipulated in the relevant legislative instrument.

2. Ms Hussin orally, and her employer in written submissions, describes the circumstances leading up to her subclass 186 visa application. Ms Hussin’s subclass 457 visa was approved on 24 November 2014 and she commenced work as a registered nurse in the neonatal unit of the Fiona Stanley Hospital on 5 December 2014. Ms Hussin’s work was highly regarded and the hospital sought to nominate her position naming her as the subject of a subclass 186 visa.

3. The original nomination was prepared in early 2017 but due to the Health Department changing its name (from Department of Health WA to South Metropolitan Health Service), a new sponsorship nomination was sought delaying the application.

4. When a new application was submitted on 3 July 2017, the nominator failed to provide Ms Hussin with the transaction reference number (TRN) to link her subclass 186 visa application with the nomination application.

5. In an email dated 11 July 2017 South Metropolitan Health Service informed the HR Consultant at Fiona Stanley Hospital that “No action was required by Hamidah with regard to her existing 457 visa”. It appears the hospital HR Consultant accepted no action was required, so he simply informed Ms Hussin on 13 July 2017 (only six days before her 50^th birthday) that the application to nominate her had been submitted. She was still not informed of the TRN.

6. Ms Hussin’s application was delayed as a result of these messages, and she did not lodge her application until 25 days after her 50^th birthday.

7. Ms Hussin has received a number of glowing letters of support in relation to her qualifications and expertise from her workplace as demonstrated by the extracts below:

   “Hamidah came to work in the neonatal unit with a vast neonatal nursing experience in addition to her postgraduate certificate in neonatal intensive care.”

   Joy Quilatan | Clinical Educator – Neonates: Fiona Stanley Hospital, (undated)

   “Hamidah Hussin is not only a qualified Neonatal Trained Nurse. She has also proven herself to be one of our most experienced nurses.”

   Dr Jean du Plessis | Head of Service Neonatology, Department of Neonatology – South Metropolitan Health Service, (undated).

   “Hamidah is an excellent neonatal nurse. She is very competent and extremely skilled in neonatal nursing care.”

   Dr Shail Mehta | Head of Service – Neonatal Unit, Fiona Stanley Hospital, and
   Becky Marsh | Nurse Unit Manager - Neonatal Unit, Fiona Stanley Hospital, 14 August 2019

   “Hamidah currently cares for all babies requiring advanced neonatal intervention. This includes, ventilator support, cooling, brain monitoring, umbilical Lines- both venous and arterial. Hamidah provides invaluable support and education to the junior nursing staff.  As a highly skilled nurse Hamidah supports and provides ongoing mentorship to our nursing and midwifery students. Her skills and experience enable her to act in a clinical nurse capacity when required and to regularly take on the ‘shift co-ordinator’ role.  This role dictates the responsibility that she carries the neonatal emergency pager and attends ‘Code Blue’ emergencies.”

   Gemma Sims | Nurse Unit Manager – Neonates, South Metropolitan Health Service, 22 January 2021

8. Senior members of the nominator’s staff have been clear about the difficulties Fiona Stanley Hospital and the South Metropolitan Health Service has experienced in recruiting people into positions such as the one currently performed by Ms Hussin, and the impact this position has on supporting sick infants:

   “Neonatal Nursing is a highly specialised area and skilled Neonatal trained nurses are extremely difficult to recruit…

   We struggle to provide safe, 24/7 nursing care for our newborn babies who need Intensive Care by nurses like Hamidah.”

   Dr Jean du Plessis | Head of Service Neonatology, Department of Neonatology – South Metropolitan Health Service, (undated).

   “Hamidah is an advanced skilled neonatal nurse and currently following recent recruitment campaigns it is difficult to employ nurses with the skills and qualifications that Hamidah currently holds. We recently received 120 applications for recent RN positions at [Fiona Stanley Hospital], of these two people held neonatal qualification and which zero could be employed due to not being in the country and not holding the required working visa.”

   Gemma Sims | Nurse Unit Manager – Neonates, South Metropolitan Health Service, 22 January 2021    

   “Hamidah is one of the core groups of nurses who are highly skilled in caring for lower gestational age infants, if Hamidah is not able to gain permanent residency in Western Australia this would provide a gap on the amount of Neonatal trained nurses we currently have in the unit. Currently there is a shortage of specialty trained nurses for neonates. As a Clinical Educator I highly value staff like Hamidah who came to work in our neonatal unit with the knowledge and experience as it normally take at least 12 months before a new nurse can gain the experience and the specialty knowledge required to take care of highly vulnerable sick infants.”

   Joy Quilatan | Clinical Educator – Neonates: Fiona Stanley Hospital, (undated)

   “Upon opening our unit the patient cohort was 34 weeks gestation and above… and is now currently at 30 weeks gestation… Fiona Stanlyey Hospital is in discussions with the Director General for WA Health with a further reduction in gestation to 28 weeks….

   Presently there are not enough specially trained neonatal nurses who are able to care for our lower gestation infants who require a skilled nurse such as Hamidah to care for them…

   To get a new nurse to the same level of experience as Hamidah would take a minimum of approximately 4 years.”

   Sylvia Donnelly | A/Clinical Nurse Educator – 3B Neonates: Fiona Stanley Hospital, 5 February 2021

9. The Tribunal has sympathy for the applicant and her nominator in this matter, however in order to be successful the application must comply with the legislation.

Age requirements

1. 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 IMMI 17/058: cl.186.221. 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.

2. Miss Hussin’s passport states that she was born on 19 July 1967. This was confirmed by the applicant in oral evidence. The application was lodged on 13 August 2017, 25 days after her 50^th birthday.

3. In the present case the applicant was aged 50 years at the time of application.

4. Applicants for subclass 186 (Temporary Residence Transition stream) who are not required to be below the age of 50 at the time of application for the purposes of paragraph 186.221(b) are specified in the legislative instrument IMMI 17/058:

   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 person is located in regional Australia.

5. Ms Hussin was not: nominated by an Australian scientific government agency in a specified role; nominated by an Australian university in a specified role; working for the nominating employer for at least four years immediately before at least four years and on an annual income in that four year period of at least equivalent to the Fair Work High Income Threshold ( which was $138,900 in 2016/2017); or, a medical practitioner.

6. Therefore, cl.186.221 is not met.

Consideration by the Minister

1. 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.

2. There are submissions from the hospital in relation to the importance of Ms Hussin’s work to Western Australians:

   “Hamidah currently cares for critically sick vulnerable newborn babies in our neonatal intensive care unit (NCIU)… As a highly skilled nurse Hamidah supports and provides ongoing mentorship to our nursing and midwifery students…

   Losing a nurse like Hamidah would put the organisation and the wider community of WA at a disadvantage. Short Staffed NICU’s are known to be associated with poorer outcomes for the patients…

   Hamidah helps in saving little babies’ lives in her daily job with her skills and hard work.”

   Dr Shail Mehta | Consultant Neonatologist: South Metropolitan Health Service, 8 February 2021

   “During 2020 we admitted 376 neonates to our unit requiring intensive care treatment, losing a nurse like Hamidah would not only put the organisation at a disadvantage but also the wider community of WA.

   Gemma Sims | Nurse Unit Manager – Neonates, South Metropolitan Health Service, 5 February 2021

3. It is clear to the Tribunal that the applicant in this matter provides advanced neonatal intervention regularly working as shift co-ordinator dealing with ‘Code Blue’ emergencies and often caring for premature and sick infants.

4. The Minister’s guidelines for referral include unique or exceptional circumstances such as ‘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 Australian permanent resident.

5. Ms Sims stated at the hearing that the Hospital advertised for neonatal nursing staff in August 2020 and there was not a single suitable applicant. In a written submission Ms Quilatan notes the length of time it normally takes for nursing staff to perform the role taking care of highly vulnerable sick infants:

   “Hamidah is one of the core groups of nurses who are highly skilled in caring for lower gestational age infants, if Hamidah is not able to gain permanent residency in Western Australia this would provide a gap on the amount of Neonatal trained nurses we currently have in the unit. Currently there is a shortage of specialty trained nurses for neonates. As a Clinical Educator I highly value staff like Hamidah who came to work in our neonatal unit with the knowledge and experience as it normally take at least 12 months before a new nurse can gain the experience and the specialty knowledge required to take care of highly vulnerable sick infants.”

6. In a letter dated 5 February 2021 Claire Clooney, Nurse / Midwifery Director Service 3, Fiona Stanley Hospital reinforced the difficulty recruiting:

   “Recruitment of nursing staff for this highly skilled nursing position is extremely difficult and is ongoing concern to the sustainability of our Neonatal Unit.”

7. The importance of Ms Hussin’s role to the health and welfare of premature babies in Western Australia, together with her recognition as a highly skilled practitioner, and the difficulties her nominator has in filling positions such as hers all weigh heavily in favour of the Tribunal supporting a request to refer the case to the Department for consideration by the Minister.

8. The Tribunal is not aware of any reasons stated in the Ministerial Guidelines that would suggest this case should not be referred.

9. The application failed to meet the age requirements by 25 days and the delay was caused largely by a departmental name change requiring a new standard business sponsorship.

10. 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) and refers the matter to the Department.

CONCLUDING PARAGRAPHS

1. 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.

2. The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351.

DECISION

1. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

George Hallwood
Member