Morada (Migration)

[2022] AATA 1960

Morada (Migration) [2022] AATA 1960 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nestor Morada
Ms Elvira Morada
Ms Elisha Mae Morada
Mr Ezekiel Morada

REPRESENTATIVE:  Mr Raj Kumar Saini (MARN: 1678844)

CASE NUMBER:  2101645

HOME AFFAIRS REFERENCE(S):          BCC2018/4712539

MEMBER:Alison Mercer

DATE:6 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 6 May 2022 at 4:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Residential Care Officer – age requirements – exemption categories in IMMI 18/045 – applicability of LIN 19/216 and LIN 22/047 – unique or exceptional circumstances – Skills Priority List – demonstrated and valuable contribution to employment sectors – unfair or unreasonable results – ineligible for concessional provisions set out in LIN 19/216 and LIN 22/047 – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 186.221, 186.311

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 on 5 February 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 October 2018. 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 (TRT) stream, the Direct Entry (DE) stream, or the Labour Agreement (LA) stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition (TRT) stream, to work in the nominated position of Residential Care Officer (ANZSCO code 411715).

5. A Department officer originally refused the visas on 12 July 2019 on the basis that the applicant did not meet cl.186.223, which required that he was the subject of an approved nomination by his Australian employer, Sydenham Grace Pty Ltd. The delegate found that the Department had earlier refused to approve the nomination of the applicant by Sydenham Grace Pty Ltd. Subsequently, both the applicants and the employer sought review of the respective refusal decisions with the Tribunal.

6. On 5 June 2020, the Tribunal (as presently constituted) set aside the Department’s decision to refuse Sydenham Grace Pty Ltd’s nomination and substituted its decision to approve that nomination (see AAT/MRD decision 1917714 of 5 June 2020). On the same date, the Tribunal (as presently constituted) set aside the Department decision to refuse to grant the applicants subclass 186 visas and remitted those visa applications back to the Department with a direction that cl.186.223 was now met by the applicant, and for reconsideration of the remaining visa criteria for him and the second, third and fourth named applicants (see AAT/MRD decision 1920198).

7. Upon remittal, a delegate refused to grant the visas because the applicant did not meet cl 186.221 of Schedule 2 to the Regulations. This clause requires that the applicant was 45 or under at the time that the visa application was made, unless he fell within an exemption category. The delegate found that the applicant had turned 45 prior to making the visa application on 26 October 2018, and did not fall within an exemption category. Accordingly, the delegate found that the applicant did not meet the criteria for the TRT stream, and had made no claims against the other streams. He therefore did not meet the criteria for a subclass 186 visa. The delegate also refused to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) on the basis that they could not satisfy the secondary visa criteria, which required them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

8. The Tribunal received a review application from the applicants on 12 February 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Raj Kumar Saini, as their representative and authorised recipient for correspondence.

9. The applicants also provided the following documents with the review application:

   ·letter from the applicant’s employer to local MP in support of the applicants, dated 23 August 2020;

   ·letter in support of the applicant by the Honourable David Van MP, 25 August 2020; and

   ·statement from the applicant to the Department dated 19 August 2020. 

10. The contents of the applicant’s statement were as follows:

    …

    The Subclass 186 ENS Visa (Employer Nomination Scheme visa) is a permanent residency visa that requires the sponsorship of a nominating employer. In summary regarding age factor:

    ·A maximum age requirement of 45 at the time of application will apply to Direct Entry stream applicants.

    ·A maximum age requirement of 50 at the time of application will continue to apply to Temporary Residence Transition stream applicants on the basis of grandfathering arrangements who has applied for 457 visa before 18 April 2017.

    I have applied for 186 (Employer Nomination Scheme) visa on 26/10/2018 (I was 54 years old at the time of application) which was refused on 12 July 2019.

    I have appealed the delegate’s decision at AAT on 24/07/2019 which was remitted back to the Department for reconsideration on 05 June 2020.

    Department now raised the concerns regarding my age for granting the visa.

    I would like to bring it your notice about my situation:

    I have been working with my employer Sydenham Grace since June 2013 (Attached Support from my Employer)

    As I am working in the critical care sector and given my experience in the industry I would like to request the Honourable Minister to intervene in my case to consider my skills in the critical care industry which will help the elderly community and my community ties in Australia.

    I am requesting Honourable Minister to Intervene in my case from the below factors where the Minister can exercise his power under public interest powers in Section 351,417 and 501J of the Migration Act 1958.

    Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

    Documents to support claims that you would suffer serious, ongoing and irreversible harm and continuing hardship if you are returned to your country of origin:

    ·evidence of your age (birth certificate or passport)

    ·evidence of your health status (recent medical/specialist reports)

    ·a statutory declaration outlining how you will suffer irreparable harm and continuing hardship because of your age or ill-health

    ·a letter of support from your family members or from others who are willing to provide you with ongoing care while you are in Australia indicating the nature of the support and care that they are able to provide.

    We will check any claims you make about your home country, including your access to appropriate health care

    Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.

    Documents demonstrating why you would be of exceptional benefit to Australia:

    ·awards or industry or peer recognition

    ·letters of support from relevant national bodies, for example professional, industry, cultural or sporting bodies

    ·evidence of your English language standard such as the results of an International English Language Testing System (IELTS) language test

    ·evidence of qualifications, for example degrees or membership of a professional body

    ·evidence that your skills are recognised in Australia by a relevant Australian assessment authority

    ·employer references showing you have been employed in your profession or or trade

    Business or financial statements.

    Below are the links for your reference in regards to the Residential care officer requirements in Australia.

    I would like to provide any information requested in support of my application.

    …

11. On 9 February 2022, the Tribunal received the following additional material:

    ·the applicant’s tax returns for the financial years 2014/15, 2015/16, 2016/17 and 2017/18;

    ·letter dated 12 July 2020 from the third named applicant;

    ·letter dated 12 July 2020 from the second named applicant;

    ·letter dated 10 July 2020 from the fourth named applicant;

    ·further letter from the applicant dated 10 July 2020;

    ·undated article from SBS World News online concerning a visa application for a family of 5 which was successful at the Tribunal despite one of the dependent children being assessed as having significant health costs due to having Downs Syndrome;

    ·petition to the Minister, undated, in support of the applicants remaining in Australia;

    ·letter dated 13 July 2020 from Dr Jude Gurusinghe in support of the applicant;

    ·letter dated 10 June 2019 from Mr Edward Rojas, the applicant’s brother in law;

    ·letters dated 29 June 2020 from Pastor Craig Anderson of the Infinity Church, South Morang, and 30 June 2020 from Pastor Mark Donato of the Encompass Church, Bundoora, in support of the applicants;

    ·letter dated 12 February 2022 from Dr AKM Shahiduzzaman Khan, Sunshine Marketplace Medical Centre, in support of the applicant; and

    ·legal submissions from the applicant’s agent. These essentially repeat the submissions made by the applicant at paragraph 10 above.

12. In her letter, the second named applicant makes the following points:

    …

    I am writing this letter in support to my husband, Nestor Morada and our family in regards to the application of our Visa for Employer Nomination (Permanent)- (Visa Class EN) for Compassionate consideration reason.

    I would like to attest that Mr Nestor Morada is a very hardworking and responsible husband, a good father and an excellent provider to his children and whole family. He really worked hard for his sponsored residential disability facility and in the whole community in Australia. He has been proved to be a passionate and excellent carer towards vulnerable elderly and mentally disabled people. I firmly believed that he was highly considered by his employer as an asset to an organisation in healthcare sector industry.

    I have worked two Aged Care Facilities, one in Bethel Aged Care located at Mill Park for almost 9 years and 5 years in Estia Health Aged Care located at South Morang. ln this Healthcare Sector, i found my heart and passion towards helping and serving vulnerable elderly and demented people around both facilities. Me and my husband are both working very hard in skilled occupations and we both wished to continue to the skilled shortage that this country is facing.

    Me and my husband and my whole family worked so hard and extremely persevering for the betterment and welfare for the whole family and whole community as well. My husband significantly contributed a lot as being a good model, good father to their kids, good husband, kind, so passionate towards his clients (residents) at his work and always worked day and night just to ensure that everything and everyone is smoothly in order.

    From my heart, i knew that Nestor is being assigned as COVID volunteer task force monitoring staff at his sponsored company aside from his sponsored RCO title due to this pandemic crisis as my husband even risked himself as being proactive and vigilant in monitoring any signs and symptoms of all disabled residents and even staff around the supported residential services {SRS) facility.

    My husband worked so hard and my whole family as well been here for almost 12 years in Australia. My husband's employer wanted to sponsor him permanently and Nestor due to being so kind, passionate, responsible, loyal, hardworking, flexible, very caring with his patients (residents) and dedicated to his work in that residential care facility and the whole community.

    As you could imagine, my whole family are worried and struggling about what might bring to us our life when back home, no anyone there and my whole family is here in Australia and our kids are grown-up and they had schooling since very young age and are stable. We love Australia as our best home as we are truly blessed as God provided us an opportunity to be here in this beautiful country. My husband and me contributed significantly as we contributed and paying our taxes for almost L2 years for the Australian economy and we became a vital part for the betterment and welfare for the Australian community and whole nation.

    Me and my family heartily asking from your kind compassion and heart consideration to please consider our application for permanent residency and we may be a very good citizens in this fabulous, fantastic and beautiful country. We don't have anything and anyone to go back in our own hometown (Philippines) as my whole family is already all well and stable, well-adjusted, well-adopted Australian culture and my kids love this country and have bright future, aspirations, beautiful dreams that will make come true in this phenomenal country.

    We sincerely beg and ask from your kind compassion, Honourable Minister as we always prayed and cried everyday and night to Almighty God, to please grant us permanent residency as my whole family especially to my husband whom ifully support as i believe in my heart that my family will be a vital and significant huge contributor for the wellness, betterment and good welfare not only for the economy but for the Australian whole community.

    We humbly and sincerely ask from you, Honourable Minister that you may consider our applications for Permanent Residency for my whole family'

    We sincerely hope for your kindness and compassion about this matter.

    ...

13. In her letter, the third named applicant makes the following points:

    …

    My name is Elisha Mae Morada, and I am 24 years old. I am the eldest daughter of Nestor & Elvira Morada. We have resided in Australia for almost 11 years.

    My parents are God-fearing and persevering people, very industrious and hardworker and they currently employed in permanent stable jobs for the period we have been in Australia on our 457 visas. They are both passionate, responsible and good citizens in our community.

    I fully support my parents especially to my father, Nestor Morada whom he is an excellent provider to us in all aspects, very humble person, kind, conscientious as he looks his job to be done on time and works so hard in his job even when called day and night for his tasks as he is very compliant and flexible person.

    We are very religious and family-oriented, hardworking, honest, dedicated and professional family and we call Australia our beautiful and fabulous home.

    Returning back to Philippines might also bring disaster to our life and my family as I am worried and scared how hard and difficult it is would be to adjust to a culture and language I am no longer familiar with as I was so very young age then when my parents left the Philippines. We are already adjusted well and stable here as we came to Australia to study at a very young age. I have served in our church community for a very long time and they wanted my service to continue serving those disabled vulnerable people to take care and educate them for our community. We call this country, Australia our own home already as we already established and learned the beautiful culture and language of Australia.

    Me and my family already contributed a lot for the welfare and betterment for the Australian government and whole community.

    I sincerely and heartily asking from you, Honourable Minister to please consider favourably our visa application for Permanent Residency.

    Thanks and I am praying and hoping that you will grant us our Permanent residency for compassionate reason.

    …

14. In his letter, the fourth named applicant made the following points:

    …

    My name is Ezekiel, and I am 22 years old. I am the youngest son of Nestor & Elvira Morada. We have resided in Australia for almost 11 years.

    My parents are hardworking people and have been employed in stable jobs for the period we have been in Australia on our 457 visas. It is due to their hard work that has enabled me to successfully and subsequently enrol at the prestige Victoria University in 2016. I am currently studying Bachelor of Nursing and I am due to graduate this year 2020.

    My parents have worked very hard to pay for my course and have continuously made contributions to the country by paying taxes and helping fill the country’s skilled shortages.

    We are on a 457 visa and applied for Permanent Residency visa. Due to no fault of ours, our visas were refused due to the refusal of my father’s employers nomination application. We went through the Appeals Tribunal process and the nomination was overturned and approved. As a result of this, our visas are currently being reassessed.

    As you could imagine, we are worried of the outcome of our visas. I am making every effort ensuring this worry does not affect my important studies that I have put my heart and soul in to and my work at Estia Health Aged Care as a Personal Care Worker.

    We are a hardworking, dedicated and professional family and we call Australia our home. I fear if returning to the Philippines how difficult it would be to adjust to a culture and language I am not familiar with, being so young when my parents left the Philippines.

    I hope you will consider favourably our visa application and understand the contribution we as a family have made to the Australian economy. I have worked so hard to get where I am at university, and my parents have worked hard to set up our lives here, and I do not want my parents hard work and savings to pay for my university studies to be wasted.

    I do hope you will consider favourably our visas application.

    …

15. In his letter of 10 July 2020, the applicant makes the following points:

    …

    I am writing in regards to my application of my visa and my family for Employer Nomination (Permanent) (Visa Class EN) for compassionate consideration reasons.

    I whole-heartedly express myself and my whole family that we have been resided in Australia for nearly 12 years. We came here on a Student visa since 2009 and applied for Permanent Residency visas after completion for almost 5 years under 457 visa. Due to no fault of ours, our visas were refused due to the cancellation of my employer’s nomination application or we could have applied either. We went through… the AAT but because of the AAT process has been so long in duration, I now find that I am of an age where I do not qualify. However, after how many years of struggling, AAT released the positive outcome result of our visa application and the Tribunal finally remits application for … Employer Nomination… visas for reconsideration, with the direction that I met all the following criteria for an… Employer Nomination visa.

    As you could realise, me and my family are extremely worried and struggling about the future outcome of our visas and we are exerting every effort to ensure that our everyday worries, anxieties, and struggles won’t affect my job and sponsorship as well as to the welfare of my family and to my vulnerable disabled residents and people too, that I have honestly put this to my heart and soul to make all things smoothly and in order.

    My occupation is much worthy at this point in time due to a tremendous crisis of Covid 19 issue as I am currently holding a position as Residential Care Officer (RCO) and at the same time I was being specially assigned as a volunteer in the Covid19 task force monitoring officer from Department of Health and Safety (DHS) to monitor any signs and symptoms of any vulnerable disabled patients or residents in order to prevent any spread of the virus around facility. I have worked for this Healthcare industry as a Residential Care Officer for almost 7 years and I had a very good and productive excellent experience relating to this position. My role is most importantly reported and being mandated with the compliance from the Department of Health as we need to be proactive and vigilant to any issues of health (physical and mental) issues of the patients surrounding the facility. I have all these special skills and I am contributing a lot to the country by filling the shortage the country facing. I am a leader of the Covid19 pandemic issue and I was so actively vigilant and much particular about this issue as it will be a huge threat towards the people and the community as a whole. My role involves a lot of responsibilities and I have to respond immediately in a high risk situation.

    Me and my family work very hard, reliable, caring, dedicated, professional family with full heart and compassion and become productive citizens in Australia. We are very blessed that Australia is our home and our future. I am very much worried and scared if going back to the Philippines will significantly and tremendously bring me and my whole family a ‘catastrophy’ [sic] and ‘disaster’ into our life and you can imagine how extremely difficult it would be to start and adjust to a new environment, have nothing to go back to in the Philippines, my mom just passed away last year, and my children would not be able to assimilate any more in Filipino Culture as they don’t know the language and might potentially affect their future prospects and significantly disrupt their life. Our children have had schooling here in Australia since at a very young age and they are already well adjusted and stable here. Kids came in this beautiful country to harness their dreams future as we believed this country is one of the best for family, support for the kids, for lifestyle, future growth and advancement. We came here now as good citizens in this country, works very hard in this country, my wife worked in two Aged Care health industry as a personal care assistant working with vulnerable elderly people of the society and worked for almost 12 years and had a lot of qualifications in their sector and healthcare. We are passionate to work in the healthcare industry because so much work to be done towards people in this country and worked day and night when called. Also, we involve some emotional, physical and mental aspects of the residents. My kids are grown up now and we meet some wonderful people here in Australia. My son is already a Bachelor of Nursing here in Australia and will hopefully be finishing this semester for this year and worked in an health care industry in which he contributed a lot to the government for his tax contribution and my daughter also contributing a lot to the disable people especially in the community church. Me and my family contributed hugely paying taxis to the government for quite a long time and we are significant part for the betterment and welfare of the Australian economy.

    We hope and pray to our Almighty God may our Honourable Minister will heartily grant our Permanent Residency Visa for a compassionate and humanitarian consideration reason.

    We hope for your kind and compassionate attention be upon with me and my whole family.

    …

1. In his letter, the applicant’s brother in law, Mr Edward Rojas, makes the following points:

   …

   As a brother in law, I would like to attest that Mr Nestor B Morada and his family have an excellent moral character. The first time they came here in Australia, they have proven to me that they can survive by themselves together they were able to independently survive as a family and without being dependent to us. In fact, currently the couple have a very stable and full time jobs. Besides that, their son Ezekiel is now graduating in Victoria University to becoming as a registered nurse by this year in December 2020. Their daughter Elisha May Morada have always been benevolently helped their family, my family and Christian Churches as a volunteer. The family has been helping me as a leader of Infinity Church and other churches in Victoria, by helping our family, friends, community outreaches with their voluntary service in prayers, time, and finance. I highly believe that they can contribute a lot for our beloved country of Australia.

   …

2. In his letter, Pastor Anderson makes the following points:

   …

   Greetings!

   …

   I would like to attest that I know the family personally since year 2009 through his brother in law Mr Edward Rojas, who is a leader in my church. Beginning his life in Australia as a student, he now seeks residency, however because the process has been so long in duration, he now finds himself at an age where he does not qualify. However, Nestor and his family have become productive citizens in Australia. Nestor now fulfills an important leadership role in Supported Residential Services (SRS) and has been genuinely valued by his employer who I am told vitally supports his application for residency. Mr Nestor B Morada …[and his family] have an important contribution to make to Australian society and on the grounds of compassion I appeal to the Minister to overlook the age restriction and grant the family residency.

   …

3. In his letter, Pastor Donato makes the following points:

   …

   I whole heartedly endorse Mr. Nestor’s application as he and his family have been attending our church faithfully for close to 4 years. Both Mr. Nestor and his wife Mrs. Elvira have also been serving on our ‘Usher’ team which involves them interacting with people of all ages and nationalities. They do this role with great enthusiasm and willingness to make everyone who visits our church (prior to COVID lockdown) welcome and valued. Mr. Nestor and his family make an extremely valuable contribution to our church community, and we would not want to lose them.

   To my understanding, his current employer SRS (Supported Residential Services) also supports his application for residency due to his work ethic and character.

   I do believe that Mr. Nestor Morda, his wife Mrs. Elvira Morada, and his two children Elisha and Ezekiel currently and will continue to make a strong contribution to their local and wider community

   …

4. In his letter, Dr Gurusinghe makes the following points:

   …

   [The applicant] is known to me over the last 7 years as a dedicated senior staff member since the time he has been working at Sydenham Grace. Nestor has demonstrated his exemplary skills to assure “Overall Health and Wellbeing” of residents with extreme needs at above mentioned facility, which is a mammoth task by all means.

   He always adhered to policies and shown high level of staff management skills, to relevant stake holders and various Health Services. His management of Resident medication management and administration were highly appreciative [sic]. He demonstrated professional level of service surrounding Personal Support, Hygiene, Issues and Activities of daily living of the residents, upholding Privacy, dignity whilst providing protection from various abuses.

   Nestor being well known in the disability community has contributed a lot, especially in the Disability sector.

   I wish him all the best, being an asset to the organisation, he has the potential to contribute a lot to our community.

   …

5. In his letter, Dr Khan makes the following points:

   …

   
   
   

   I would like to attest that I know Mr Nestor B Morada for about 2 years.

   I have been observing him working as a carer for intellectually disabled and socially disadvantaged people.

   He is an honest, caring, sincere, dependable worker.

   He deals those persons very carefully and diligently as he understands them well.

   He is also a volunteer for COVID19 task force unit at the residential facility for the disadvantaged people appointed by the DHS.

   He is now very much integrated with the Australian community.

   He is making significant contribution to make betterment [sic] of Australian society. The Australian community needs his service and support so Mr Morada and his family could cherish in Australia now and in future.

   Australia needs this kind of good people.

   …

6. The applicants appeared before the Tribunal on 23 February 2022 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence via videoconference from the applicant’s employer, Mr Pradeep Divakar.

7. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicant confirmed that he is still employed as a Residential Care Officer with Sydenham Grace Pty Ltd, the owner of which is Mr Pradeep Divakar. He has been employed there since 2013, and his employment is ongoing. The applicant confirmed that his work involves caring for the residents of a Supported Residential Service (SRS), which is often challenging, as the applicants are adults with complex needs due to disability and/or acquired brain injuries. Some come to the service from having been in jail. The applicant said that since the COVID19 pandemic, he had had additional responsibilities for ensuring that the facility adhered to strict COVID19 safety procedures, and for liaising with the Victorian Department of Health Services (DHS) on these issues. The applicant noted that, unlike aged care facilities, SRS facilities in Victoria did not have the power to prohibit visitors to the facility or to restrict residents to the home during the pandemic. This meant that it was very challenging to manage COVID-safe protocols, but they managed to do so, and had not had any COVID19 cases to date. The applicant said that he was committed to this work, and noted that his wife and son had similar caring roles. They are all frontline workers.

9. In response to the Tribunal’s query, the applicant said that Mr Edward Rojas was married to 1 of his sisters, and they were both Australian permanent residents. He told the Tribunal that he has another older sister, who is a nurse and also an Australian permanent resident. He has 1 brother in the Philippines. His father died some years ago, and his mother and another brother in the Philippines died last year. The applicant said that he and the family had nothing left in the Philippines – they had no property and no assets here. Their life was in Australia, particularly for his children, who came as children and were now young adults.

10. The second named applicant reiterated the applicant’s evidence about the family’s integration into the Australian community and she and the applicant’s concerns if they had to return to the Philippines to try to re-start their life there. She was particularly concerned for her children in that regard, as they had spent their formative years here and had little connection with the Philippines.

11. In response to the Tribunal’s query, the second named applicant confirmed that she has been working as a Personal Care Assistant (PCA) for over 10 years in Australia. She currently works at 2 aged care facilities, 1 in South Morang (where she has worked for over 7 years) and 1 in Mill Park (where she has worked for over 10 years). She said that she was committed to caring for people in this sector.

12. The third named applicant confirmed that he has spent his formative years in Australia and had not returned to the Philippines since the family arrived here. He had finished his Nursing degree in December 2020 and was currently working casually with an agency as an entry level nurse. In response to the Tribunal’s query, he said that he hoped to work in hospitals if possible, in Acute care. However, he was just starting out in his career so at the moment, he worked where the agency needed him to. He told the Tribunal that his graduation ceremony was on 22 March 2022, as it had been deferred due to the COVID19 pandemic preventing in person ceremonies until now.

13. The applicants told the Tribunal that the fourth named applicant was too shy to say much in the hearing, but she spent most of her time volunteering at their Church (the Compass Church), where she acted as an usher during services and focussed on supporting the elderly and frail members of the congregation. The applicant told the Tribunal that the fourth named applicant had a big heart and loved to help others.

14. Mr Pradeep Divakar, the owner of Sydenham Grace Pty Ltd, the applicant’s employer, confirmed that SRS facilities such as his worked in a highly regulated and challenging area, and he confirmed that the applicant was an experienced, loyal, caring, ethical, hard working employee who he completely supported to stay in Australia with his family permanently. He noted that although the subclass 186 visa category appeared to favour people under 45 on the assumption that they had more to contribute to the economy, his opinion was that the applicant’s age and experience (he is now 57) were an advantage in the SRS sector. Mr Divakar noted that managing and working in an SRS required maturity and experience, as residents could be difficult and/or exhibit challenging behaviours. It took good skills and experience to manage this and yet still treat the residents respectfully as adults. Mr Divakar said that the applicant had these skills and the maturity to do this, which was a significant benefit not only to the residents of the facility but also to other staff, whom the applicant was able to mentor. Mr Divakar added that it remained difficult to recruit and retain staff in this sector, particularly since the pandemic, but even before that. He noted that he had been advertising a Coordinator position for nearly 2 years without success. Mr Divakar confirmed the vital role that the applicant had played in managing the COVID19 protocols at the facility, and noted what an achievement it was that the facility had not had any cases there to date. Mr Divakar reiterated that the applicant and his family were assets to Australia and deserved to be granted permanent residency.

15. At the conclusion of the hearing, the Tribunal agreed to defer its decision until 31 March 2022 to enable the applicants to provide additional up to date work references, and a reference from their current landlord.

16. On 9 March 2022, the Tribunal received the following additional material:

    ·letter dated 7 March 2022 from Bethel Aged Care, Mill Park, confirming that the second named applicant is one of their senior Personal Care Assistants, and has been employed as a permanent part-time employee since July 2011. The acting Facility Manager notes that the second named applicant has been awarded Certificates of Appreciation and Recognition in 2015 (twice) and 2017.  It is stated that she ‘plays a crucial role in the day to day operation of our aged care facility and keeping our consumers safe and healthy. She also had an integral role in helping the facility during the COVID19 outbreak. We really appreciate [her] loyalty and dedication to our aged care facility and her ongoing support and contribution towards looking after the health and wellbeing of our consumers;’

    ·letter dated 6 March 2022 from the first named applicant’s brother in law, Mr Rodrigo A Fabreo Jr;

    ·letter dated 6 March 2022 from the first named applicant’s cousin, Maria Gardner;

    ·undated letter from friend of the applicants, Erderlyn Mueller;

    ·letter dated 12 February 2022 from Dr AKM Shahiduzzaman Khan;

    ·Letter dated 22 February 2022 from Dr Paul L Grech, clinical psychologist;

    ·letter dated 18 February 2022 from Dr Sanwar Sawdagar;

    ·certificates of appreciation and recognition awarded to the second named applicant in 2015, and 2017;

    ·letter of appreciation dated 3 March 2022 to the second named applicant from Estia Health, marking her 7th anniversary with South Morang Heritage Lakes aged care facility, noting that she is a valued employee;

    ·copy of the third named applicant’s nursing registration with the Nursing and Midwifery Board, valid until 31 May 2022;

    ·contract of employment between Alpha Services Pty Ltd and the third named applicant dated June 2021;

    ·the third named applicant’s Bachelor of Nursing degree issued 18 February 2021 by Victoria University;

    ·letter dated 3 March 2022 from the applicants’ neighbours;

    ·letter dated 5 March 2022 from the first named applicant’s nephew, George Fabreo; and

    ·letter dated 3 March 2022 from the first named applicant’s sister, Kathleen Fabreo;

17. On 15 March 2022, the Tribunal received a further letter from Mr Divakar on behalf of Sydenham Grace, in which he states that:

    …

    Mr Nestor Morada is currently working as a Residential Care Officer (RCO) for Sydenham Grace SRS since his 457 visa has been granted since 28 October 2014. Mr Morada has been proven to be an asset to our organization and was offered a full-time position as a Residential Care Officer in December 2014. Mr Morada has been treated and valued by the Company, his colleagues and all our residents for his passion, caring, dedication, hardworking, enthusiasm, reliability and being trustworthy.

    Mr Nestor Morada plays a crucial role as an RCO in the day-to-day operation of our supported residential facility and keeping our vulnerable elderly and mentally disabled residents safe and healthy.

    “Covid Zero” at Sydenham Grace

    Mr Morada had an integral significant role in helping the SRS facility during this pandemic COVID-19 global outbreak. During this pandemic situation, Mr Nestor Morada has been assigned by a Department of Families, Fairness and Housing (DFFS) since the pandemic started to be part of the Task Force Team to lead the team participate to be vigilant and pro-active about the compliance policies and regulations as being mandated and regulated by DFFS and the Victorian government in order to combat and eradicate by controlling any Covid-19 issues within SRS facility.

    Mr Morada with the help of his team and the management, was able to execute and maintain consistently on a ‘ZERO” COVID-19 issues within Sydenham Grace SRS facility throughout the Pandemic times to till now, while Western Victorian region in particular Sydenham, Melton had been the Hot Hub for Covid infection. Mr Morada has been effectively and consistently adhered to the procedures and protocols complied about it accordingly.

    Mr Morada plays a vital role at our SRS facility as Mr Morada with the help of his team successfully monitored and maintained any Covid-19 issues for all each residents, all day-to-day transactions i.e. any Covid related symptoms that need to be addressed to our health professionals as soon as possible. Mr Morada was able to maintain this system with the help of his organised and effective covid-19 daily monitoring sheets and vital signs. Mr Morada was able to adhere any grievances and issues related to covid-19 issues and consistently done effective protocols compliance in coordination with DFFS, Co-Health, healthcare professionals for early prevention of any issues especially COVID-19.

    Mental Health Wellbeing of residents

    Off late there is increase in Alcohol and Drug effected Brain Injuries and various other forms of abuses including being neglected in society, and quite a few of our residents happen to be underage. There is a strong desire and need to have mature staff to mentor and combat growing drug dependency in our community, who can handle stressful environment and be consistent in their performance.

    There are not enough staffing with those capabilities available to work in those stressful environment.

    Nestor being passionate about his residents, being in his 50s has those special qualities to work with those young and aged residents including, who always shoulders those responsibilities with ease.

    At Sydenham Grace Pty Ltd., Mr Morada and all other staff prioritised, focused and valued on the care of our vulnerable elderly, frail and mentally disabled clients through our development of trust and secure relationships.

    Our solid philosophy is purely based on the knowledge that the good quality aged care is being supported and funded on the social, emotional, cognitive, physical and aesthetic development of each individual clients.

    The management really appreciate Mr Morada’s loyalty and dedication to our supported residential services and his untirely ongoing valuable and significant support and contribution towards looking after the wellbeing of our residents.

    …

18. On 5 April 2022, the Tribunal received a further submission from the applicants’ agent:

    …

    We would like to submit that the applicants circumstances fall under LIN 19216 – common concession should be applied and no matter of age or occupation will be able to apply 186 TRT stream (if they meet all other requirements).

    Accordingly we request the Tribunal to please consider our applicant’s circumstances clearly fall under LIN 19216 (Applicant was on 457 on or after 17 April 2017 and was in Australia for 12 months between 01 February 2020 and 14 December 2021.

19. On 7 April 2022, the applicants’ agent provided evidence of the Australian citizenship of Rodrigo A Fabreo Jr, George Fabreo, Kathleen Fabreo, and Maria Gardener.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Age requirements

21. 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 18/045: cl 186.221. In this case, as the visa application was made on or after 18 March 2018, the applicant must not have turned 45 at the time of application.

22. In the present case the applicant was born on 29 May 1964 and was thus aged 54 years at the time of application on 28 October 2018. As he was not under 45 at the time of the visa application, he does not meet cl.186.221(a).

23. Accordingly, the Tribunal has reviewed the exemption categories set out in item 9 of IMMI 18/045 for the purposes of cl.186.221(b):

    For the purposes of paragraphs 186.221(b) and 187.221(b) of Schedule 2 to the Regulations, the following classes of persons are specified:

    (a) a researcher, scientist or technical specialist who has been assessed at the ANZSCO skill level one or two and who is nominated by an Australian scientific government agency;

    (b) an academic who is nominated for a position by an Australian university to be employed at an Academic Level of B, C, D or E in one of the following positions:

    (i) University Lecturer (ANZSCO: 242111);

    (ii) Faculty Head (ANZSCO: 134411); or

    (c) a person who holds a Subclass 457 visa or a Subclass 482 visa and who has been working in a nominated occupation for the nominating employer for at least three years, immediately prior to the date of application for a Subclass 186 visa or a Subclass 187 visa; and whose annual income for each year of the three year period was at least equivalent to the High Income Threshold; or

    (d) a person:

    (i) who is a medical practitioner (ANZSCO MINOR GROUP 253);and

    (ii) who has been employed as a medical practitioner for a period of at least three years, immediately prior to the date of application for a Subclass 186 visa or a Subclass 187 visa; and

    (iii) who, during that three year period prior to application for a Subclass 186 visa or a Subclass 187 visa, was a holder of a Subclass 457 visa or a Subclass 482 visa; and

    (iv) who was employed in regional Australia for at least two years during the period of three years immediately prior to application for a Subclass 186 visa or a Subclass 187 visa; and

    (v) in relation to whom the nominated position is located in regional Australia.

    …

1. The definitions section of IMMI 18/045 provides that ‘high income threshold’ has the meaning given by section 333 of the Fair Work Act 2009, which in turn provides that it is defined by instrument. The Tribunal is satisfied that the current high income threshold amount is $158,500: High income threshold | Unfair dismissals benchbook (fwc.gov.au).

2. The Tribunal is satisfied that the applicant has been nominated (and has been employed as) a Residential Care Officer by his nominating employer, Sydenham Grace Pty Ltd, which operates 2 private residential care facilities in Melbourne. Accordingly, the Tribunal finds that the applicant does not fall with the categories set out in paragraphs (a), (b) or (d) above.

3. In relation to (c), the Tribunal is satisfied that although the applicant held a subclass 457 visa and had worked for his nominating employer for at least 3 years prior to making the subclass 186 visa application on 26 October 2018 (see findings at paragraphs 60 and 61 of MRD/AAT decision 1917714 of 5 June 2020), it is not satisfied that the applicant’s annual income for each of those 3 years (being the financial years 2015/16, 2016/17 and 2017/18) was at least $158,500 (the High income threshold). The evidence provided to the Department with the applicant’s subclass 186 visa application indicates the applicant’s contract salary at that time was $70,860. Subsequently, the applicant provided his tax returns, which show that he had the following taxable income in the relevant 3 year period:

   ·2015/16: $57,901;

   ·2016/17: $53,943; and

   ·2017/18: $52,737.

4. According to the website of the Fair Work Commission, the high income threshold for those financial years were:

   ·2015/16:  $136,700

   Source:  $138,900

   ·2017/18:  $142,000

   Source: >

   Given the above, the Tribunal finds that the applicant’s salary was not at least, and did not exceed, the High Income Threshold in the 3 years prior to 26 October 2018, being 2015/16, 2016/17 and 2017/18. He was therefore not exempt from having to meet the age requirement under (c) above.

5. As the applicant did not fall within any exemption category, he cannot satisfy cl.186.221(b), and therefore, cl 186.221 as a whole is not met.

6. The Tribunal has considered the agent’s post hearing submission at paragraph 33 above, but is unable to find that it assists the applicant.

7. The Tribunal has reviewed the instrument it considers that the agent is referring to, LIN 19/216. However, it is satisfied that this instrument does not apply to the applicant, and for that reason, LIN 22/047 does not apply to him either, as LIN 22/047 amends LIN 19/216. Further, the Tribunal notes that LIN 22/047 does not commence until 1 July 2022. If the Tribunal made its decision after that date, it would be in effect but for the reasons set out below, the Tribunal finds it would not apply to this case.

8. The Tribunal is satisfied that LIN 19/216 applies in relation to an application for a visa made on or after 16 November 2019 (see Part 3, Item 9 of the instrument). The applicant’s visa application was made on 26 October 2018 and is thus outside the scope of LIN 19/216.  Amendments of LIN 19/216 by LIN 20/189 apply to applications on/after commencement of items 3 and 4 of Schedule 1 to LIN 20/189, which commenced 24 November 2020. Items 3 and 4 insert (6) and (7)(1)(da) and subclass 457/482 coronavirus concession workers, but as  LIN 19/216 doesn’t apply to the applicant, these amendments do not affect him and make no difference to the outcome of this review application.

9. The Tribunal notes that LIN 22/047 will amend LIN 19/216 from 1 July 2022 to include ‘legacy 457 workers,’ which might be thought in broad terms to include the applicant, given he previously held a subclass 457 visa. However, this instrument also does not apply to him, because it amends LIN 19/216, which (for the reasons set out in the paragraph above) the Tribunal has found does not apply to the applicant. The Tribunal has been unable to find  any reference to ‘legacy 457 workers’ in other instruments or legislation, but it appears that the term indicates a Departmental policy to relax permanent residency requirements for skilled workers who stayed in Australia during the pandemic. While the Tribunal appreciates that the applicant and his agent would consider this was intended to provide a favourable outcome for previous or current subclass 457 visa holders such as the applicant, the Tribunal cannot ignore or waive the clear terms of LIN 19/216. Its terms exclude visa applications made prior to 16 November 2019. Subsequent amendments to LIN 19/216 cannot apply to the applicant unless he fell within the terms of LIN 19/216 in the first place.

10. 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.

11. The Tribunal must also affirm the decision to refuse to grant the second, third and fourth named applicants subclass 186 visas, as they do not meet the secondary visa criteria in cl.186.311 requiring them to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    Ministerial intervention request

12. In the event of an unsuccessful review outcome, the applicants have asked the Tribunal to consider referring their matter to the Minister for consideration under s.351 of the Act.

13. Section 351 of the Act confers on the Minister for Immigration a personal, discretionary power to substitute a more favourable decision in a person’s case in the event that they are unsuccessful in their review application. There are non-exhaustive guidelines for this process on the Department’s website and its policy guidelines for decision makers, as follows:

    Types of unique or exceptional circumstances:

    ·Strong compassionate circumstances that if not recognised 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 your age and/or health and/or psychological state that, if not recognised would result in serious, ongoing and irreversible harm, and continuing hardship

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

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

    ·You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.

    …

    Inappropriate to consider

    The Minister has indicated to us that cases that do not meet the guidelines for referral and which have the types of circumstances described below are inappropriate for the Minister to consider.  If your case has one or more of these circumstances, we will finalise it without referral to the Minister and will advise you or your authorised representative in writing:

    ·the request is made by a person who is not the subject of the request or their authorised representative

    ·the person is in the community and:

    ois an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request

    odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)

    ·the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa

    ·the person’s visa has been cancelled because they breached their visa conditions

    ·the person has had a visa refused because they did not comply with the conditions of a previous visa

    ·the person has been refused a visa or has had a visa cancelled on character grounds

    ·the Australian Security Intelligence Organisation (ASIO) has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect

    ·the person could apply for a Partner visa onshore but is subject to a visa condition 8503 (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

    ·the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)

    ·the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore

    ·the person has left Australia

    ·the person has an ongoing application for a substantive visa (either onshore or offshore) 
    with the Department

    ·the person has an ongoing application for merits review of a visa decision with a relevant review tribunal

    ·the person has had a remittal or a set aside decision from a relevant review tribunal or a court

    ·the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E

    ·the person has an ongoing ministerial intervention request under any of the powers covered by these guidelines

    ·a Notice of intention to remove has been issued to the person and the ministerial intervention request has not been initiated by the Department

    ·the person holds a Bridging visa E with visa condition 8512 which specifies that the person must leave Australia by a specified date

    ·the request raises claims only in relation to Australia’s non refoulement obligations.

    …

14. The Tribunal is satisfied that the circumstances of the applicants do not fall within any of the scenarios designated as ‘inappropriate to consider’ for Ministerial intervention set out above.

15. In summary, the applicants seek Ministerial intervention to grant them permanent visas on the grounds that:

    ·they have resided in Australia for a lengthy period of time (since 2009) and are well-integrated into the community here;

    ·they have Australian citizen relatives, friends and colleagues who would be emotionally affected if they were to depart Australia now, and they have nothing to return to in the Philippines;

    ·the first, second and third named applicants are employed in the healthcare sector in Australia, as (respectively) a Residential Care Officer in the disability support sector, a Personal Carer in the aged care sector, and a registered Nurse. There is an ongoing need for these occupations in Australia;

    ·the first named applicant is a long term, valued employee of his sponsoring employer, who would be very difficult to replace, and having to replace him would adversely affect the Supported Residence Service in which he works, and its other staff and the residents. He has occupied this role since 2014 and more recently was responsible for managing the SRS’ COVID19 protocols throughout the height of the pandemic in Melbourne, which resulted in no cases within the facility;

    ·the timing of the first named applicant making a subclass 186 visa application after he had turned 50 was affected by the sponsorship/nomination bar imposed on his sponsoring employer (which was subsequently shortened on review by the Tribunal) and by the duration of the appeal to the Tribunal in relation to the nomination refusal decision. These factors were not within the first named applicant’s control;

    ·the first named applicant’s employer regards the applicant’s age (57) as a positive attribute for his particular role, as dealing with the SRS’ clients, who have complex conditions including substance abuse issues and/or Acquired Brain Injuries, requires maturity and experience. In addition, the first named applicant’s experience and maturity is also a benefit to the training and development of younger and less experienced staff at the SRS; and

    ·the first named applicant is in a similar position to other persons who previously held subclass 457 and/or 482 visas and remained in employment in Australia with their nominating employers throughout the COVID19 pandemic, yet it falls outside the scope of the clearly beneficial amendments in LIN 19/2016 and LIN 22/047 intended for people in similar positions simply due to the date of the first named applicant’s subclass 186 visa application.

16. The Tribunal does not consider all of the above factors to be exceptional or unique, but taken cumulatively, it considers that it is warranted to refer this matter to the Minister for consideration of the exercise of the Minister’s power under s.351 of the Act.

17. In doing so, the Tribunal gives weight to the fact that the Australian government’s National Skills Commission’s current Skills Priority List (published June 2021) lists Residential Care Officers (ANZSCO code 411715) as not being in current shortage in Victoria or nationally, but as having a strong future demand, and lists Personal Care Assistants (ANZSCO code 423313) as being in shortage in Victoria and nationally. These are the occupations in which the first and second named applicants have been working for approximately 10 years in Australia, and (despite the first named applicant being 57 years old) it may be accepted that they will continue to work in these fields for some years to come (having regard to the evidence of the first named applicant’s employer regarding the value placed by him on the age and experience of the first named employee). Moreover, the third named applicant’s occupation of Registered Nurse, while not currently in strong shortage in Victoria or nationally, is nevertheless an occupation which will be required for the foreseeable future in Australia. While the applicants may not bring benefits that are ‘unique or exceptional’ in Australia, the Tribunal accepts that they have made a demonstrated and valuable contribution, and will continue to contribute, to employment sectors where there is a need for skilled people to work with vulnerable people (the ill, elderly and/or intellectually disabled or impaired).

18. The Tribunal also considers that, in this case, the application of the subclass 186 legislation leads to unfair or unreasonable results in the first named applicant’s case; in that his skills are still required by his long term Australian employer, and – but for the date of his subclass 186 visa application – he would be eligible for the concessional provisions set out in LIN 19/216 and LIN 22/047, including being exempt from the age requirement.

19. For these reasons, the Tribunal considers it appropriate to refer this matter to the Minister for consideration of the exercise of the Minister’s power pursuant to s.351 of the Act.

    DECISION

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

    Alison Mercer
    Member