nabunat (Migration)

[2021] AATA 265

nabunat (Migration) [2021] AATA 265 (8 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marie Isabel Nabunat
Mr Randy Nabunat
Master Keanu Chongchongan Nabunat
Miss Pebbles Joane Nabunat
Miss Ralyn Marie Nabunat
Miss Izadee Nabunat

CASE NUMBER:  1807203

HOME AFFAIRS REFERENCE(S):          BCC2017/3485895

MEMBER:Wan Shum

DATE:8 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2021 at 12:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused – nominator not actively operating – first applicant currently working in similar position for another employer – long settled life in Australia, value to employers and children’s education – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

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 23 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 September 2017.

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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) had sought the visa in the Direct Entry stream, to work in the nominated position of Registered Nurse.

5. The applicant was nominated for this position by Frangipani Gentle Care Group Homes Pty Ltd, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was rejected on 25 January 2018.

6. As a consequence, the delegate refused to grant the visas because there was not an approved nomination in respect of the applicant, which meant she did not meet cl.186.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants sought review of these decisions. However, by the time the nomination application was reviewed by the Tribunal, the nominator did not appear to be actively operating.

8. The Tribunal decided not to approve the nomination and has no option but to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which this application relates was approved under the Direct Entry stream: cl.186.233(3). The position must identify the applicant and be the one that was the subject of the declaration that was required to be made as part of the current visa application: cl.186.233(1).

10. 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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

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

11. On the visa application form, the details of the related nomination that were entered matched the Transaction Reference Number or Nomination TRN EGOFUZTJUC the nomination made by Frangipani Gentle Care Group Homes Pty Ltd, initially for the position of Registered Nurse (nec) which was later corrected to Registered Nurse (Aged Care). As set out above, the Tribunal did not approve that nomination so cl.186.233(3) is not met.

12. In response to the Tribunal’s letter advising the applicants that a decision had been made not to approve the nomination made by Frangipani Gentle Care Group Homes in respect of the applicant, the applicant gave a brief immigration history, outlining that she has first entered Australia in 2005 as a trainee nurse on a Subclass 442 visa sponsored by St Mary’s Villa and was later sponsored by the same organisation for a Subclass 457 visa, which included her family. She was then sponsored by two different organisations for Subclass 457 visas and then for a permanent visa by Frangipani Gentle Care Group Homes in 2017, which was ultimately unsuccessful on review before the Tribunal.

13. The applicant made reference to the willingness of her current employer to sponsor her, but referred to not being able to do so due to the COVID19 travel restrictions. The Tribunal understands that this is because of her visa history such that she is unable to apply for a further visa onshore and must travel offshore to make an application. Following a request for evidence regarding her current employment, the Tribunal was provided with a letter from the Facility Manager of Meredith House Aged Care Facility. In this letter, the manager confirms that they have worked together for many years and that losing her would “create a big impact on our daily operations and clinical care”. The manager added that they provide their support “by way of sponsoring [the applicant] and her family” to gain permanent residence, although no evidence was provided to the Tribunal of an actual application to sponsor and/or nominate the applicant.

14. The applicant’s response to the Tribunal’s letter also referred to her husband’s continued engagement as a “delivery staff of the post office”. In response to the request for evidence of Mr Nabunat’s employment, the Tribunal was provided with a letter advising that Mr Nabunat has been engaged as a subcontractor under Regans Delivery Service Pty Ltd since 7 January 2013. The owner referred to Mr Nabunat as dependable, reliable, hardworking, conscientious and very courteous and supported their application for permanent residency.

15. The applicant also explained that her four children had lived here since 2008 and had been schooled here since primary school. She referred to her eldest child having completed her Bachelor degree, the second child studying nursing, her third child having just completed Year 12 and the youngest being in Year 11. A number of documents were provided which reflect enrolment at UTS, TAFE-NSW and Patrician Brother’s College for three of the applicant’s children, and a completion/graduation certificate in respect of the third child from Nagle College.

16. Although the applicant has provided evidence that she is currently, and has been, employed at Meredith Aged Care Facility in the same occupation, this is not the position for which the applicant made the necessary declaration for the purposes of this application. Therefore, the Tribunal cannot find that all the requirements of cl.186.233 are met.

17. 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.

    Ministerial Referral

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

19. The power under s.351 of the Act may only be exercised by the Minister personally.  Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether he is requested to do so by the applicant, or in any other circumstances. The Tribunal does not have any statutory power to make a binding recommendation in this regard. 

20. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    [1] Available at >

    The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention but the Tribunal does not consider that this case falls within those circumstances. 

21. In this case, the Tribunal has taken into account that the applicant has been living in Australia for 15 years and working as a nurse, with the majority of that in the Aged Care industry. The Tribunal understands that there is a skills shortage in this area, and the COVID19 pandemic has further highlighted these issues.[2] The Commonwealth has a range of programs and reforms to the aged care system in Australia to improve quality of care,[3] with a Royal Commission into Aged Care Quality and Safety with a final report due in 26 February 2021. The interim report the Commission identified a pattern of societal neglect surrounding aged care that has left services fragmented, unsupported and underfunded. There is a need for significant reform to improve the quality of aged care and ensure older Australians have access to the care they need. It appears that staffing issues are one of the most common concerns identified in public submissions received by the Commission, along with isolation and unmet needs.[4] The applicant claims to have many years of experience in Australia in this sector, which the Tribunal considers would be beneficial to the community. The Tribunal notes that the applicant’s husband and their four children have also lived in Australia since 2007 and 2008, with the husband having been engaged by the same employer for the past 8 years delivering parcels, with demand for such services seeming to have been essential during the pandemic, and the children having undertaken all or a majority of their studies in Australia.

    [2] (accessed 8 February 2021).

22. Having regard to the circumstances of this case, the Tribunal considers that this situation involves unique or exceptional circumstances.  The Tribunal therefore considers it appropriate to request this case be brought to the attention of the Minister in order for him to consider exercise of his discretionary intervention powers under s.351 of the Act.  The applicants may wish to provide further documentation in support of the application to the Minister, including the need for their skills and relevant information regarding the extent of their integration into the community. 

    DECISION

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

    Wan Shum
    Member

    
    

    ATTACHMENT A

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

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

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

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.