Mansell (Migration)

[2019] AATA 4268

Mansell (Migration) [2019] AATA 4268 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jane Mansell
Mr Brian Charles Mansell
Miss Lorna Evelyn Mansell
Mr Gary Brian Mansell

CASE NUMBER:  1712461

HOME AFFAIRS REFERENCE(S):           BCC2016/3462679

MEMBER:Karen McNamara

DATE:26 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2019 at 10:00am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Medical Diagnostic Radiographer – the nomination of the applicant was refused–  tribunal affirmed nomination application – not the subject of an approved nomination – referral to the Minister –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.233, 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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 October 2016. 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 (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 Mrs Jane Mansell (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Medical Diagnostic Radiographer (ANZSCO  251211)

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because on 26 April 2017, the nomination lodged by The Trustee for the Mansell Family Trust was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicants appeared before the Tribunal on 21 May 2019 by video conference from Perth to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brian Mansell on behalf of the nominator.

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

9. The issue in the present case is whether the applicant meets the requirements of cl.187.233.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. The applicant attended the hearing on the 21 May 2019. It was a combined hearing regarding the nomination refusal.  The Tribunal explained that, to meet cl.187.233, the applicant must be the subject of an approved nomination.  It explained that the review of the nomination refusal must be finalised before the decision in this case could be made.  The Tribunal advised that it would write to the applicant advising of the decision.

13. On the 5 August 2019, the Tribunal affirmed the decision refusing the approval of the nomination made by The Trustee for the Mansell Family Trust (trading as Lithostar Pty Ltd) in respect of the applicant. As the nomination has been refused, regulation 187.233(3) is not met.

14. On 7 August 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Lithostar Pty Ltd which the Tribunal explained was relevant to Mrs Mansell meeting cl.187.233(3) which requires the nomination to be approved. As the nomination has been refused, regulation 187.233(3) is not met.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 21 August 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

16. The applicants did not respond in writing.  The applicants have not provided any evidence to confirm that they are the subject of an approved nomination.

17. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl.187.233(3).

18. As the first named applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 is not met.

19. There is no evidence before the Tribunal to indicate that the second, third or fourth applicant meets the primary requirements for grant of the visa.

20. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the secondary applicants Mr Brian Mansell, Miss Lorna Mansell and Mr Gary Mansell as members of Mrs Jane Mansell’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.187.311.

21. The applicants have only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    Request for referral to the Minister

22. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

23. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

24. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

25. The circumstances which may be unique or exceptional in this case include, relevantly:

    Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

    Is this an appropriate case to refer to the Minister?

26. The Tribunal has had regard to the circumstances of the applicants. The applicants left South Africa and settled in Australia to provide a safe and secure future for the family, in particular the children Lorna and Gary Mansell. Upon coming to Australia Mrs Jane Mansell and her husband Mr Brian Mansell established a business (Lithostar Pty Ltd) based on an aspect of medical technology (Extra Corporeal Shockwave Lithotripsy (ESWL)) that had not been used in Western Australia for a considerable time due to a lack of experienced and qualified operators.  Information before the Tribunal suggests that applicant is the only provider of this service in Western Australia and in 2017 the applicants purchased and imported the specialised equipment (Dornier Compact Delta Lithtripter) required to perform this treatment.

27. The applicant is a qualified radiographer with over thirty years’ experience and over fifteen years’ experience in the field of ESWL. ESWL is an alternative treatment to invasive surgery for patients presenting with kidney stones. The treatment has an established Medicare Item number.

28. Evidence before the Tribunal supports the applicants’ claims of a growing interest amongst the Western Australian medical community, particularly in urology with the treatment being used successfully to treat children. The applicants told the Tribunal that they were unaware of the red tape and bureaucracy in the Western Australian Health system and as a result their business has not grown as quick as originally anticipated. Furthermore, they acted on advice in regard to a contractual arrangement to supply services and as a result, this advice led to a negative assessment of the business’s financial capacity to employ the applicant full time for at least 2 years. On the basis of this information, on 5 August 2019, the Tribunal found that the nominator did not satisfy r.5.19(4) (d), therefore not meeting r.5.19(4) and affirmed the decision under review.

29. The applicant’s family is well established in Australia and financially independent. Their son Brian Mansell (the fourth named applicant) is undertaking an apprenticeship in plumbing and their daughter Lorna Mansell (the third named applicant) is studying.

30. Having regard to the circumstances of the applicants as outlined above, the Tribunal considers that the applicants' situation involves compellingly unique and exceptional circumstances. Specifically in the fact that the applicant is the only provider of this service in Western Australia and in consideration of the nominee’s specialised work in the field of ESWL, demonstrates the applicant’s significant contribution to the Australian community.

31. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.

    DECISION

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

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.