Imaysay (Migration)

[2021] AATA 5370

Imaysay (Migration) [2021] AATA 5370 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose Elmer Zamora Imaysay
Mrs Maria Teresa Agno Imaysay
Mr John Cristopher Agno Imaysay
Mr Mark John Agno Imaysay
Mr Angelo Joseph Agno Imaysay

CASE NUMBER:  1907070

HOME AFFAIRS REFERENCE(S):          BCC 2018/4661072

MEMBER:Peter Emmerton

DATE:1 December 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 01 December 2021 at 12:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Metal Fabricator – age requirements – over the age of 50 – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 187.221, 187.311

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 23 October 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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 Metal Fabricator, ANZSCO 322311.

5. The delegate stated that they refused to grant the visas because the applicant did not meet cl 187.221 of Schedule 2 to the Regulations because the delegate determined that at the time of the application lodgement, the applicant was over the age of 50. Therefore, he did not meet the age requirement of being under 50. Furthermore, he was not a person in a class of persons specified by the Minister in an instrument and therefore cannot be considered for an exemption.

6. The applicants appeared before the Tribunal, via video, on 19 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Tannos, the visa applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino (Tagalog) and English languages.

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

8. 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 cl 187.221 of Schedule 2 to the Regulations is satisfied.

Age requirements

10.  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 187.221. In this case, as the visa application was made on or after 18 March 2018, but the associated nomination application was made prior to that date the applicant must not have turned 50 at the time of application.

11.  In the present case the applicant was aged 53 years at the time of application. This was confirmed with the applicant at the hearing. The Tribunal has copies of the applicant’s Passport, National Bureau of Investigation (NBI) Clearance and Birth Certificate. All 3 of these documents correlate with each other and the statement made by the applicant. Therefore, the Tribunal is satisfied that the stated age, (53 years) is correct. When questioned at the hearing the visa applicant confirmed that he was turning 57 on 21 December 2021.

12.  The Tribunal has determined that the applicant is not in a class of persons specified by the Minister in an instrument that can be considered for an exemption. The relevant instrument being IMMI 17/058.

13.  Therefore, cl 187.221 is not met.

14.  The Tribunal is sympathetic to the plight of the applicants however it has no discretion in this matter. Evidence was presented verbally at the hearing by Mr Tannos that in his view it appears that the visa applicant had been poorly advised by his previous immigration representative. He based this view on his experience of other successful visa applicants working in his company around the same time. He went on to say that this resulted in financially costly actions and the delay in application, beyond the relevant age cut-off occurred.

15.  Unfortunately, should the applicants need to return to their originating country, where the retirement age is 60, they will most likely have their future prospects substantially lessened as a direct result of leaving Australia. A reduced chance of gainful employment and dramatically reduced income are a likely immediate outcome which will in turn lessen their economic security. Australia will lose the substantial education investment made in the secondary applicants and their future productivity. The employer will lose a highly skilled and very difficult to replace employee located in a remote region where skilled labour demand far exceeds supply.

16.  The remote location coupled with the climatic hardships makes it challenging to recruit and retain skilled labour. The Tribunal is aware that welders trained in the Philippines are considered some of the best in the world. The Northern Territory Government is likely to be negatively impacted by the associated slowing of production by the employing entity, of goods in great demand which are needed to ease housing pressures. In addition, the associated taxation revenues will be lost to 2 or 3 levels of Government.

17.  Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry clearly appears to be one such sector. The problem is exacerbated in regional areas or smaller States and Territories, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.

18.  The Northern Territory Government and the Australian Government policies acknowledge and are attempting to overcome the skilled trades issues in the Northern Territory. These skilled labour deficits are retarding vital infrastructure construction and economic development. This impacts all levels of the community in the NT however it has a disproportionate impact on remote rural communities and Aboriginal communities. Housing shortages, which this organisation is contracted by the NT Government to assist in lowering, are cited as a primary factor creating greater Covid-19 risks in the Aboriginal communities due to critical levels of overcrowding and an inability to socially distance should infection enter the community as it has recently.

19.  Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]

[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021

20.  The applicant has only sought to satisfy the criteria for a Subclass 187 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.

Secondary applicants

•     Mrs Maria Teresa Agno Imaysay

•     Mr John Cristopher Agno Imaysay

•     Mr Mark John Agno Imaysay

•     Mr Angelo Joseph Agno Imaysay

21.  The Tribunal has determined that the secondary applicants are not members of a family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of having satisfied the primary criteria for a Subclass 187 visa.

22.  The secondary applicants therefore do not meet cl.187.311.

23.  The secondary applicant has only sought to satisfy the criteria for a Subclass 187 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, as a secondary applicant have not been met, the decision under review must be affirmed.

DECISION

24.  The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Peter Emmerton

Member