Lee (Migration)

[2021] AATA 156

Lee (Migration) [2021] AATA 156 (12 January 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Walter Lee
Mrs Cherry Lee
Ms Aldrich Rahman Lee
Ms Alethea Ysabel Lee
Mr Walter Jr Lee

CASE NUMBER:  1915513

DIBP REFERENCE(S):  BCC2018/2724449

MEMBER:Marten Kennedy

DATE OF DECISION:  12 January 2021

DATE CORRIGENDUM

SIGNED:4 February 2021

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

1. The date of the decision is amended from 12 January 2020 to 12 January 2021.

   Marten Kennedy
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANTS:  Mr Walter Lee
   Mrs Cherry Lee
   Ms Aldrich Rahman Lee
   Ms Alethea Ysabel Lee
   Mr Walter Jr Lee

   CASE NUMBER:  1915513

   HOME AFFAIRS REFERENCE(S):          BCC2018/2724449

   MEMBER:Marten Kennedy

   DATE:12 January 2020

   PLACE OF DECISION:  Adelaide

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

   I refer to the matter to Department for consideration of the request for Ministerial intervention.

   
   Statement made on 12 January 2021 at 12:28pm

   CATCHWORDS
   MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Pig Farmer – late response to s.359(2) invitation – not entitled to appear before the Tribunal – prescribed age limit – exemptions provided for in IMMI 18/045 – Ministerial Intervention requested – decision under review affirmed

   LEGISLATION
   Migration Act 1958 (Cth), ss 65, 351
   Migration Regulations 1994 (Cth), Schedule 2, cl 187.221

   STATEMENT OF DECISION AND REASONS

   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 20 July 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 Pig Farmer.

   5.The delegate refused to grant the visas because the applicant did not meet cl 187.221 of Schedule 2 to the Regulations because he exceeded the prescribed age limit at the time of application and did not fall within any relevant exemption.

   6.I wrote to the applicant on 17 December 2020 using the procedure provided for by section 359(2) of the Act.  I invited the provision of information supported by corroborating documentary evidence demonstrating that Mr Lee was either under the age of 45 at the date of application or fell within one of the relevant exemptions, which I set out in detail in the correspondence.

   7.No response was provided within the timeframe prescribed to respond to a notice under section 359(2) of the Act, but Mr Lee’s representative provided correspondence to the Tribunal outside that required timeframe.

   8.In the correspondence, Mr Lee’s representative acknowledges that Mr Lee does not fall within any of the exemptions to the age limit imposed at cl.187.221 of Schedule 2 to the Regulations, but asks the Tribunal to refer Mr Lee’s case to the Minister to consider intervention. A support letter is provided by Mr Lee’s employer in that regard.

   9.As Mr Lee did not provide the information I had requested within the prescribed timeframe, he lost his entitlement to a hearing.  I have proceeded to finalise this review on the material available to me.

   CONSIDERATION

   10.The issue in the present case is whether Mr Lee was either under the age of 45 on the day of the visa application, or meets any of the exemptions provided for in the applicable legislative instrument for cl.187.221(b): IMMI 18/045.

   11.Mr Lee was 53 years of age on the date of the visa application, and so he does not meet the requirement of cl.187.221(a).

   12.It is conceded on behalf of Mr Lee that he does not meet any of the exemptions provided for in IMMI 18/045.  I accept therefore that Mr Lee neither met the requirement that his annual income for three years before the date of the visa application was at least the High Income Threshold, nor had not yet turned 50 so as to meet an alternative exemption regarding the holding of a subclass 457 visa on 18 April 2017.

   13.It follows therefore that Mr Lee does not satisfy the requirements of cl.187.221 of Schedule 2 to the Regulations, and the visa must be refused.

   14.The secondary visa applicants each seek to satisfy the secondary criteria for the grant of the visa, which require that they be members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria. As Mr Lee must be refused the visa, it follows that the secondary visa applicants’ visa applications must also be refused as they will not satisfy cl.187.311 of Schedule 2 to the Regulations.

   15.I affirm the decision under review.

   REFERRAL

   16.Under ss 351(1) of the Act the Minister may substitute for a decision of the Tribunal in the Migration and Refugee Division a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.

   17.The Minister has issued guidelines explaining the circumstances in which he or she may wish to consider exercising his or her public interest powers under ss 351 and the circumstances where he does not wish to consider exercising his powers.  I have had regard to those guidelines: LEGEND,  (Ministerial powers - Minister's guidelines on ministerial powers (s351, s417 and s501J).

   18.I have identified no evidence of matters identified in the policy that would indicate the matter is not appropriate to be referred to the Minister.

   19.In support of the request for intervention (which must be considered and exercised by the Minister personally), the applicant relies on a letter of support from Agripork Australia Pty Ltd of 28 December 2020.  In that letter, it is contended that the nominating employer is important to the local regional economy in Western Australia, and the applicant is a key manager.  Reference is made to the role the applicant plays in providing training to young people who work at the facility.  It is further contended that  the applicant and his family  (the secondary visa applicants) are an integral and important part of the local community, where they have lived for 8 years.

   20.Reference is made to earlier attempts to apply for the visa when it is asserted the applicant met the then applicable age requirements, and I note that the age requirements changed shortly before the visa application was made.

   21.I express no view about whether it is appropriate for the Minister to intervene, as that is a matter that will first be considered by the Department and then by the Minister personally.  However, I think the matters raised in support of the request for the Tribunal to refer the matter justify such a referral being made.

   22.I will refer the matter to the Department for consideration for Ministerial Intervention.  Further documents and submissions addressing this matter should be directed to the Department.

   decision

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

   I refer to the matter to Department for consideration of the request for Ministerial intervention.

   Marten Kennedy

   
   

   Member