Mariel (Migration)

[2024] AATA 136

Mariel (Migration) [2024] AATA 136 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arthur Jean Martin Mariel

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2117042

HOME AFFAIRS REFERENCE(S):          BCC2020/1277226

MEMBER:Amanda Mendes Da Costa

DATE:5 January 2024

PLACE OF DECISION:  Melbourne

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

The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Migration Act 1958.

Statement made on 5 January 2024 at 3.36pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Welder (First Class) – subject of an approved nomination – unique or exceptional circumstances – serious, ongoing, and irreversible harm – Australian citizen wife and young child – best interests of the child – exceptional economic benefit – labour shortage in the construction industry – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 on 3 November 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 March 2020. 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 (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 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 the Direct Entry stream, to work in the nominated position of Welder (First Class) ANZSCO 322313.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the position specified in the visa application was not the subject of an approved nomination.

6. On 7 September 2023, the Tribunal rote to the applicant pursuant to s 359A of the Act, inviting him to comment on or respond to information which it considered would be the reason or part of the reason (subject to the applicant’s comments or response) would be the reason or part of the reason for affirming the decision under review. The particulars of that information are:

   ·On 29 March 2020 M Barakat Family Trust (the nominator) applied to the Department to nominate the applicant for the position of Welder (first Class) ANZSCO 322313.

   ·On 5 October 2021, the nomination application lodged by the nominator was refused by a delegate of the Minister.

   ·The nominator did not apply to the Tribunal for merits review of the delegate’s decision.

7. The Tribunal explained the relevance of the information to its decision and advised the applicant that any comments or response by him should be provided (in writing) by 21 September 2023.

8. On 20 September 2023, the applicant provided a written response together with the following documentation:

   ·Letter of support (dated 20 September 2023), Tory Wilson, Wilson Excavations and Plant Hire.

   ·ABN details for Wilson Excavations and Plant Hire.

   ·PTE Academic test scores for the applicant.

   ·Marriage certificate for the applicant and birth certificates for his children.

   ·ABN details for Arthur Martin.

   ·Photographs of the applicant and his family.

9. In its response, the applicant advised the Tribunal that he did not wish to proceed with a hearing in the matters all the relevant information had been provided to the Tribunal. Based on this advice and the information contained in the Departmental and Tribunal files, the Tribunal considers that it is able to make a decision in the matter, without proceeding to a hearing.  

10. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements in cl 186.233 of Schedule 2 to the Regulations.

    Nomination of a position

13. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. 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.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

15. The information in the Departmental and Tribunal files shows that:

    ·     On 29 March 2020 M Barakat Family Trust (the nominator) applied to the Department to nominate the applicant for the position of Welder (first Class) ANZSCO 322313.

    ·     On 5 October 2021, the nomination application lodged by the nominator was refused by a delegate of the Minister.

    ·     The nominator did not apply to the Tribunal for merits review of the delegate’s decision.

16. In his written response, the applicant concedes that he is no longer employed by the nominator and is not the subject of an approved nomination.

17. Based on the evidence before it, the Tribunal finds that the position specified in the visa application is not the subject of an approved nomination.

18. Therefore, cl 186.233 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

20. 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.

21. The ministerial guidelines refer to unique or exceptional circumstances that may be referred to the Minister to consider the use of his discretion to substitute his decision for that of the Tribunal. The applicant submits that the following factors are relevant to a consideration of his circumstances:

    ·Strong compassionate circumstances that if not recognized 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.

    ·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognized would result in serious, ongoing, and irreversible harm and continuing hardship to the person.

    ·Circumstances that may bring Australia’s obligations under the United Nations Convention on the Rights of the Child into consideration, including the best interests of the child -  which must be treated as a primary consideration, but can be balanced against other primary considerations.

    ·Exceptional economic, scientific, cultural, or other benefit would result from the person being permitted to remain in Australia.

22. The Tribunal has considered the material provided by the applicant regarding his personal circumstances in which he submits:

    ·     In her letter of support, Ms Wilson states that the applicant has been working with Wilson Excavations and Plant Hire as a civil construction labourer, assisting the company in completing various construction projects in rural New South Wales and southern Queensland.

    ·     The applicant has a wife[1] and young child[2] who are both Australian citizens. The applicant and his wife are currently saving in order to purchase a home for their family.

    ·     If the applicant was forced to leave Australia for a prolonged period, it would cause significant distress to himself and his wife and child.  The applicant is particularly concerned about the affect this would have on his daughter’s emotional and psychological development and her attachment to him if they are parted for a significant period. This is because young children are sensitive to changes in their environment and relationships. The absence of the applicant from his daughter’s life is likely to cause her distress, confusion and a sense of loss and abandonment.

    ·     If the applicant leaves Australia without his family, his wife will be forced to return to the workforce to sup[port herself and their daughter. Without the applicant’s salary, his wife and child are likely to suffer financial difficulties relating to housing, childcare and other essential expenses.

    ·     The applicant is currently engaged as a construction labourer, working as a contractor for Wilson Excavation and Plant Hire and is based in rural northern New South Wales. This work is of particular value to the local economy because Australia is currently undergoing a labour shortage in the construction industry which is undergoing a period of significant growth[3].  This has been noted in the  Master Builders Association Queensland 2022 Outlook publication.

    ·     If the applicant is given the opportunity to remain in Australia, he will continue his employment in the construction industry, providing assistance to Australian construction companies in providing in-demand homes and infrastructure.

    [1] The applicant and his wife married on 3 July 2019.

    [2] The applicant’s daughter was born on 4 May 2023.

    [3] prefab-be-the-solution/

23. 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). The Tribunal considers that the applicant’s circumstances and particularly those of his Australian citizen wife and child merit the case being referred to the Department for consideration by the Minister.

    DECISION

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

25. The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Migration Act 1958.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.