Ostberg (Migration)

[2021] AATA 2518

Ostberg (Migration) [2021] AATA 2518 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Per Olof Ostberg

CASE NUMBER:  1824443

HOME AFFAIRS REFERENCE(S):          BCC2017/3398091

MEMBER:Andrew McLean Williams

DATE:17 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas, yet recommends the case be considered for Ministerial intervention.

Statement made on 17 June 2021 at 4:58pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Dairy Cattle Farmer – age requirement – subject of an approved nomination – highly experienced operator of De Laval robotic dairies – expertise irreplaceable locally – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.221, 186.223

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 6 August 2018 thereby refusing to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 18 September 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 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Dairy Cattle Farmer (ANZSCO 121313).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.221 of Schedule 2 to the Regulations because the applicant had already aged more than 50 at the time of application and was not in one of the categories that are exempt from the age ceiling.

6. The applicant appeared before the Tribunal on 16 June 2021 to give evidence and make submissions. The Tribunal also received oral evidence from the applicant’s employer, Mr Matthew Daubney of Future Fields Pty Ltd who operate Bannister Downs Dairies in Northcliffe, West Australia.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet the case should be considered for further Ministerial intervention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant can meet the requirements of clause 186.221 and 186.223.

   Age requirements

9. 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 17/058: cl 186.221. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

10. In the present case the applicant was aged 51 years and eleven months at the time of application. Therefore, cl 186.221 is not met in this case.

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

12. In addition, this criterion also requires that:

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

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

    ·the position is still available to the applicant, and

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

13. On 9 June 2018 the nomination lodged by Future Fields Pty Ltd, being the nomination referred to in clause 186.223(1) in the case of the applicant was refused by a delegate of the Minister.

14. Therefore, cl 186.223(2) 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. The Applicant and his employer have each requested that this case be recommended for Ministerial intervention.  As grounds for same, they specify the following:

    ·The applicant is the dairy manager at Bannister Downs Dairies in South Western West Australia, supervising a herd of up to 5,000 milking cows.  He has performed this role for approximately six years.

    ·Bannister Downs Dairies have installed a robotic ‘De Laval’ brand dairy.  This is the first of its kind in West Australia.  There are only three others of its type, in the world.

    ·The Applicant is a highly experienced operator of De Laval robotic dairies and herd management software, having acquired that expertise over the course of approximately 30 years as a dairy farmer, in Sweden.  His expertise is irreplaceable locally, given the specific nature of the De Laval product. 

    ·In the event that the applicant were required to leave Australia, technical support for Bannister Downs Dairies would have to be provided on-line via technical support based overseas.  This is not considered practical for day-to-day dairy operations, which require on-site expertise and monitoring.

    ·Bannister Downs Dairies support the equivalent of 48 full time equivalent (FTE) employee positions.  Four of these employees report directly to the applicant.  The applicant is thus a critical employee on whom the on-going employment of many others is now reliant. 

    ·Bannister Downs Dairies produce between 25,000 and 30,000 litres of milk, per day, and is a significant milk supplier for supermarkets in West Australia, as well as for export supply contracts to markets in Singapore and China.  In the event that the applicant were not to be available to support daily miking operations, local milk supplies and important export contracts would thus be placed into jeopardy.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa, yet recommends the case be considered for Ministerial intervention.

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

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

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