Marner (Migration)

[2018] AATA 3547

Marner (Migration) [2018] AATA 3547 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Eileen Marner
Mr John David Thomas Parnaby

CASE NUMBER:  1807267

DIBP REFERENCE(S):  BCC2017/3667399

MEMBER:Karen Synon

DATE:15 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2018 at 9:26am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Applicant over 50 at time of application – Whether the applicant is in a class of exempt persons – Applicant is not in a class of exempt persons – Decision affirmed

Migration – Request for ministerial intervention – Where applicants have demonstrated considerable commitment to their professions and the local community – Ministerial intervention should only be made in unique and/or exceptional circumstances – Matter not referred to the Minister

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 5.19(7), Schedule 2, cl 186.221

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 2 March 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 October 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Primary School Teacher’.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.221 of Schedule 2 to the Regulations because she was aged over 50 at the time of application and was not in a class of persons exempted from having to satisfy the age criteria.

6. The applicants appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Anthony McCluskey, the applicant’s employer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is cl.186.221.

9. Prior to the hearing the applicants provided the following documents:

   ·     A letter of support from the Principal of Saint Mary Mackillop Primary School, Anthony McCluskey, who commends the applicant as a valued teacher who has been employed as a classroom teacher since 29 January 2013.  Mr McCluskey writes that he would be extremely concerned for the well-being of the applicant’s prep class if their relationship with their teacher were to be severed abruptly.  Mr McCluskey also writes of the applicant’s particular skills and experience in student -initiated inquiry pedagogy and notes “it appears illogical to force such a fine educator, who continues to give valued support and ongoing professional development to our teachers and to others in the region, to leave our school system when we are working diligently to raise the standards of education and improved student outcomes”. He continues that “once our parent community are made aware of the situation, there will be a considerable public campaign to have the decision reviewed” and concludes by asking that the applicant be able to remain in Australia, until at least the end of the 2018 school year, to minimise disruption to her class and continue her leadership work within the school.

   ·     A letter of support from the IT Manager of the Royal Australian and New Zealand College of Obstetrics and Gynaecologists (RANZCOG), Sailesh Ranjit, who writes in support of the applicants.  He further writes that the second named applicant has been working at the College for over 18 months and his extensive experience in IT has helped him develop an in-depth working knowledge of the College’s systems that would take a new engineer a considerable time to learn.

   ·     A letter of support from the Director of Corporate Services of the Royal Australian and New Zealand College of Obstetrics and Gynaecologists (RANZCOG), Paul Stathis, who writes in support of the applicants and emphasises the role and value of the second named applicant in supporting the organisation’s information technology and highlighting his commitment.

   ·     A letter of support from Sue Martin and Wenche Osland of the shop ‘Book and Paper’ who write that the second named applicant has, over 2 years, advised, set up and monitored their computer system which has been invaluable to their business.

   ·     A letter of support from the applicant’s aunt, Doris Carr, who was granted Australian citizenship in 1977 and is the applicant’s only relative in Australia.

   ·     A letter of support from Reverend Marcus Curnow, the Pastor/Community Curator of the Newmarket Baptist Church, who writes that the second named applicant has been a volunteer at the local church and community centre for five years through the Flemington People’s Pantry.  The applicants have also participated in organising social events such as community choirs and fundraisers for the church’s charity work.  Rev Curnow writes that he considers the applicants “to be invaluable, loyal volunteers of fine character whose loyality, hard work and generosity in serving others has helped to build community where it is most needed”.

   ·     A letter in support of the applicants from Mark Wilkinson-Hayes who writes as a friend, neighbour and Australian citizen;

   Age requirements

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.186.221

11. In the present case, the visa application records (and the applicant confirmed at the hearing) the applicant was aged 51 years at the time of application. Therefore, cl.186.221 is not met.

12. The legislative instrument IMMI 15/083 specifies two classes of person (Class 5 and Class 6) who are exempt from having to meet the age requirement.  These are:

    ·Class 5: persons who are employed in certain occupations as follows:

    a) researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who have applied for a visa under the Regulations to occupy a position as nominated by Australian scientific government agencies; or

    b) senior academics who have applied for a visa under the Regulations to occupy a position as nominated by an Australian university in Australia.  A senior academic is a person to be employed at an Academic Level of B, C, D or E, as a:

    i. University Lecturer (ANZSCO 242111); or

    ii.Faculty Head (ANZSCO 134411

    ·Class 6: Persons:

    a) who have been working for their nominating employer as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa; and whose annual earning for each year in the four year period was at least equivalent to the Fair Work High Income Threshold; or

    b) Medical practitioners (ANZSCO MINOR GROUP 253):

    i. who have been working in their nominated occupation as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa;

    ii. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and

    iii. whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7); or

    c) Medical practitioners (ANZSCO MINOR GROUP 253):

    i. who have been working in their nominated occupation as the holder of a Subclass 422 – Medical Practitioner visa before becoming a holder of a Subclass 457 – Temporary Work (Skilled) visa at least two years in the four years immediately before applying for their Subclass 186 or Subclass 187 visa;

    ii. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and

    iii. whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7).

13. During the hearing the Tribunal discussed with the applicants these two exempt classes of persons.  The applicant confirmed she was not a researcher, scientist or technical specialist nominated by an Australian scientific government agency or a University Lecturer or Faculty Head to be employed by an Australian University in Australia.  The applicant is therefore not part of the exempt persons specified in Class 5.  The applicant has also not been working for her nominating employer as the holder of a Subclass 457 for at least four years immediately before applying for this visa whose earnings were at least equivalent to the Fair Work High Income Threshold.[1]  Nor is she a Medical Practitioner.  The applicant is therefore not a part of the exempt persons specified in Class 6.

    [1] Which is $145,400 <>

    As the applicant is not in a class of exempt persons specified in the relevant Legislative Instrument she does not satisfy cl.186.221(b).

14. As the applicant does not satisfy either cl.186.221(a) or (b), cl.186.221 is not met.

15. 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.

16. In relation to the second named applicant, the Tribunal notes that he applied on the basis of being a member of the first named applicant's family unit. As the Tribunal has found that the first named applicant does not meet cl.186.221, the secondary applicant is also unable to meet the requirements of 186.311(a), which requires that he be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    Request for Referral for Ministerial Intervention

17. During the hearing the Tribunal was asked to consider referring this case for Ministerial Intervention.  Additional evidence was given in the form of statements read out by both the applicant and her school principal, Mr Anthony McCluskey.  At the Tribunal’s request these were provided and are detailed follow:

18. The applicant’s statement:

    We understand that the reason for the 186 transition refusal was that as I was over 50 at time of application we did not satisfy the exemption as a:

    "person who has 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"

    At the time of application I was actually just 51 and had been working for the nominating employer (St Mary MacKillop School) for more than 4 yrs, but my personal income did not meet the 'High Income Threshold'.

    It turns out that, in fact, it is impossible for any teacher as experienced as myself in an Australian school, to transition on the 186 scheme.  That is because the government sets the salaries we receive and so, on my own, I did not meet the threshold.

    However, our joint income would have satisfied the requirements (despite the fact that under the 457 rules John was under no obligation to earn). It seems strange that a joint application for residency does not consider the joint income.

    At a time when the school system here is having trouble retaining experienced teachers at all levels, we think the limitation imposed by the ruling doesn't take into account our joint contribution to our Australian community.

    Consequently we are seeking that the tribunal recommends our case for the minister's consideration.  If I can give a bit more background than the paperwork may show:

    John & I moved to Australia in 2012 when his company wanted to setup an Australian office.  At the time, permanency was not a consideration because once the business was established we thought we would return to the UK.  However, while he was flying around developing contacts in various States, I started work as a Prep teacher at SMMPS in January 2013.

    I was surprised at teaching methods still in use.  I had 25 years of teaching experience and believed there were many changes I could implement to provide for a student-initiated approach to learning.  This is often called 'play-based learning' in Early Years education and it might be best to leave it to Mr McCluskey to explain more about different pedagogical methodologies, but it aligns totally with the changes to the Australian curriculum that were being implemented at the time (particularly the General Capabilities) and it draws on best practices around the world.

    Perhaps Mr McCluskey would like to say more but, in a nutshell, this research-based approach – promoted by organisations including the Australian Council for Educational Leaders (ACEL) – is about students seeing themselves as learners, not navigating an assessment system.

    Ideas that I was introducing to the Early years teams at SMMPS were well received by students, staff and parents.  I am of the firm belief that my skills and passion for teaching are enriched by my age, not despite it.  I bring a wealth of experience and knowledge which is of great benefit to the students I teach.

    The implementation of student-initiated learning has snowballed not just at SMMPS but in many schools in the area.  We now have a "Discovery Cluster" group in Melbourne West, and these things take on a life of their own, un-concerned with timetables imposed by visas. So John and I had to decide if I should abandon the work done when our temporary visa ran out, or to seek permanent residency to end the un-certainty of our status here.

    It is not a decision one takes lightly or quickly.  Time was spent considering the effect on our families and friends in the UK, the ability to visit them regularly compared to the limitations of electronic communication like Skype.  Some of our return trips to the UK have been for funerals, including John's sister and my Mother.

    At the same time, teachers here are leaving the profession I love in significant numbers – and it is particularly hard to retain teachers for more than 10 years.

    Yet, we both have history and family here in Australia – my parents met in Australia, in fact my mum was a teacher in Newcastle, and my aunt Doris lives here in Kyabram, Northern Victoria. John's sister and his nephew and niece live in Cairns.

    While here we have both invested ourselves in the community in which we live – whether it is volunteering at Open House Melbourne, or for food rescue through a FoodBank re-distribution centre, or baby (and cat!)-sitting for our neighbours, or a local "pop-up" choir, and helping a local bookstore stricken by a technology meltdown... we do not live in a bubble, but feel very much part of our community here.

    So, as I said, it is not a light decision. However, permanency would end any un-certainty and allow us to make decisions that time-limited visas do not. In consultation with the School we therefore decided to apply for the transition to permanency.

    We are in good health (and have health insurance!) and we have many working years left in us.  We bring skills that Australia does seek and wish to contribute more to Australian society – if only we are allowed to.

    In short, we believe our situation deserves more consideration as:

    §We only just miss the 'cliff edge' nature of the age and earnings regulation for the transition scheme. I bring specific skills, accumulated through years of experience, that our schools are crying out for.

    §We have connections here that are more than just work ones.

    §We are not in a bubble, but have integrated into our community and contribute to it.

19. Mr Anthony McCluskey’s statement:

    Eileen Marner was employed by SMMPS to commence in January 2013.

    The interviewing panel were immediately impressed by Eileen and as we have worked with Eileen over the past 5.6 years we have come to appreciate Eileen even more and what she contributes to our school, community and Australian society.

    Eileen brings to our school and community, an authentic and impressive range of character strengths or what some may call values.

    Eileen’s sense of fairness is displayed in her ability to treat all people the same according to notions of fairness and justice. She does not let feelings bias decisions about other people.  In short, she gives everyone a fair chance.  The value of fairness is an imperative within a school setting where we mix with such a wide range of parents, children and colleagues, all with varying agendas, approaches and concerns.  And this is particularly so with young children in their first year of schooling as they navigate their way into the wider world.

    Eileen displays an appreciation of beauty and excellence, this sense of wonder is noted as Eileen appreciates the simple gifts all people, particularly the children can bring to the community.

    She is kind and genuinely takes care of others.

    Eileen has an authentic social intelligence, whereby she is aware of the motives and feelings of others and herself.

    She is full of hope and expects the best in the future and works to achieve it.

    These values and character strengths provide a great example to our children and to her colleagues.  Eileen is a valuable role model to all whom she might encounter.

    Eileen is a person of faith.  Of course in Catholic school setting, a true and authentic lived faith is often rare, and therefore most valued.

    Eileen also brings to our school, perspective.  She provides wise counsel, having a way to look at the world that makes sense to oneself and others.

    She approaches all tasks with zest.  This energy and her ability to not do things half-heartedly brings great value to our school

    Eileen is a team player.  She is curious in so far as she takes interest in ongoing experience for its own sake.  This has been invaluable as we explore and develop pedagogy and curriculum.

    Eileen is honest.  She is without pretence and presents herself in genuine and sincere manner.  She self-regulates, perseveres and is prudent about her choices.  She is also humble, not regarding oneself as more and Eileen has a great love of learning.

    And these are only the character strengths that readily come to mind.  Eileen is a person of the highest and finest calibre.  Of that fact I am absolute.

    And each of these values would be recognized as values all Australians are called to strive towards.

    As a professional, Eileen displays a wealth of experience in her field of early childhood education, which extends into teacher training in our school and also extends into teacher education clusters in the north and west regions of Melbourne.

    Eileen’s particular area of expertise is in play based learning or what we call student initiated inquiry.  Eileen has brought this pedagogy from the UK, which is 15 years ahead of Australia in practicing this approach to learning.

    Our school is now a leader in the area of student imitated inquiry, thanks to Eileen’s leadership.  A number of education consultants have now connected with Eileen as they work to develop clusters across the north and west regions of Melbourne to explore student initiated inquiry in real and practical ways within a large number of school settings.

    Eileen actually holds a paid position of leadership with our school to ensure the growth and understanding of this pedagogy within our school.  Her contribution has been most successful.

    I have travelled to Bath in the UK to see Eileen’s work in her previous school and district and remain resolute in my desire to make sure we continue moving down the path Eileen is making known to us.

    Of particular value has been the capacity of this pedagogy to develop and enhance the delivery of the new Victorian Curriculum.  This curriculum looks to develop general capabilities; Student Critical and Creative Thinking, Ethics, Intercultural and Personal and social Capability.

    Eileen is leading us in the alignment of these capabilities across the curriculum, ensuring we are teaching the capabilities, assessing such and collecting evidence of student achievement.

    Eileen is the ultimate professional.  Her experience and the character strengths she brings to the Australian community are immeasurable in the value they hold.

    On a very simple note, SMMPS has over 120 applications each year for Prep, the first year of schooling.  We have multiple requests from parents to have Eileen as their child’s classroom teacher.

    Children are very secure and settled in Eileen’s class.  The parents look to Eileen for advice and for reassurance as they support their child navigating life.  The parents and community have the utmost trust and belief in Eileen as teacher, role model and mentor.

    And what a great start we are giving our children having a teacher and person the calibre of Eileen to support them as they begin their journey in formal schooling.

    As a Principal of 19 years’ experience and an educator for 34 years, I personally appreciate Eileen as person of wisdom who provides me with much support and wise counsel.

    She displays care and compassion, honesty and trustworthiness, Integrity, respect, understanding, tolerance and inclusion and responsibility.

    Eileen deserves permanent residency.  She will make a wonderful Australian who contributes in a most sincere and authentic way to the Australian community and way of life.

1. In considering whether it should make a referral that the Minister intervene and exercise his power under s.351 of the Act, the Tribunal has considered the Guidelines in PAM 3 as to the circumstances in which the Minister may exercise this power. In doing so the Tribunal notes it is not bound by department policy.

2. The Tribunal has carefully considered the oral and written submissions attesting to the value of the applicants to their respective professions, community, and neighbourhood including the written statements of the applicant and Mr Anthony McCluskey along with the letters of support for both applicants detailed above at paragraph 9.  In particular the Tribunal valued the attendance at the hearing of the applicant’s employing school principal, Mr McCluskey and his very affirmative support of the applicant and what he considers to be her unique skills and critical value to the school.

3. The Tribunal accepts that both applicants have demonstrated considerable commitment to both their professional workplaces and their local communities and further accepts that the applicant is a highly valued teacher and staff colleague at Saint Mary Mackillop Primary School who contributes a range of skills and experiences both to her classroom and more broadly with other teachers and in other neighbouring schools.  However, as explained to the applicants at the hearing, Ministerial Intervention is exercised in rare cases where there are unique and/or exceptional circumstances and, notwithstanding the obvious value of the applicants to their respective workplaces and involvement in their local communities, the Tribunal is not of the view, based on the submissions provided, that the applicant being over 50 years of age at time of application and not in a class of exempt applicants, are unique and/or exceptional circumstances such that the Tribunal should refer this case.

4. As discussed with the applicants at the hearing, it is open to them to make a direct request for Ministerial Intervention.

   DECISION

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

   Karen Synon
   Member