Pereira Alphonse (Migration)

[2024] AATA 267

Pereira Alphonse (Migration) [2024] AATA 267 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mary

Sonia Pereira Alphonse

Mr Alphonse Charles Pereira
Mr

Amith Alphonse

Miss Ananya Sara Alphonse

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2105728

HOME AFFAIRS REFERENCE(S):          BCC2021/305098

MEMBER:Karen McNamara

DATE:16 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Statement made on 16 February 2024 at 12:49pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – request for referral to the Minister – effects of COVID-19 – attracting and retaining skilled workers in regional Australia and in the aged/healthcare sectors – unfair or unreasonable results – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.312

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 14 April 2021, to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 March 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant Mrs Mary Sonia Pereira Alphonse, is seeking the visa in the Short-term stream to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

3. On 14 April 2021, the delegate refused to grant the visas because the first named applicant, Mrs Mary Sonia Pereira Alphonse (the applicant) did not meet cl.482.212(1) of Schedule 2 to the Regulations, which require the applicant to be the subject of an approved nomination. The delegate found that the prospective sponsoring employer Nazz Enterprises Pty Ltd (the nominator) did not have an approved nomination.

4. Accordingly, as the nomination application had been refused, the delegate found that cl.482.212 (1) was not met and therefore the applicant did not meet cl.482.212 of Schedule 2 to the Regulations.

5. The delegate also found that the second named applicant (Mr Alphonse Charles Pereira), third named applicant (Mr Amith Alphonse) and fourth named applicant (Miss Ananya Sara Alphonse) could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312(1)) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 or 482 visa.

6. The applicants lodged an application for review with the Tribunal on 2 May 2021. A copy of the delegate’s decision was provided to the Tribunal. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. On 16 January 2024, Mrs Mary Sonia Pereira Alphonse appeared before the Tribunal via Microsoft Teams Video conference, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Amanpreet Kaur (the nominator) in the related matter for the nomination application (AAT Case file 2104080).

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, 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 video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

10. For the following reasons, the Tribunal has decided that decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.482.212(1).

    Requirement for an approved nomination

12. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

13. On the 29 January 2024, the Tribunal affirmed the decision refusing the approval of the nomination made by Nazz Enterprises Pty Ltd, in respect of the applicant. As the nomination has been refused, the applicant is not the subject of an approved nomination and therefore does not meet the requirements of cl.482.212(1) and as such cl.482.212 is not met.

14. On 30 January 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Nazz Enterprises Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.482.212(1) which requires the nomination to be approved. As the nomination has been refused the application does not meet the requirements of cl.482.212(1).

15. On 13 February 2024, the representative provided to the Tribunal a submission prepared by Mrs Mary Sonia Pereira Alphonse signed and dated 13 February 2024, stating as follows;

    “My name is Mary Sonia Pereira Alphonse and I have been living in Australia with my husband Alphonse Charles Pereira and two children Amith Alphonse and Ananya Sara Alphonse for 14 years. We are currently living in Tumut, NSW.

    I came to Australia in 2010 on a student visa with my husband. After 3.5 years my children joined us and started studying here since the ages 11 and 8, they are now 22 and 19

    My son is studying Bachelor of Nursing in Charles Sturt University Wagga Wagga and my daughter is also enrolling her diploma of nursing at TAFE NSW from March 2024. Since Australia is facing critical shortage in the nursing industry it would benefit the country.

    My son only has 1 more year to finish his nursing and it would severely and negatively affect his studies if he is asked to leave Australia. Both my children will likely find difficulty in trying to cope with the Indian education system at this point in time as they have assimilated into the Australian culture and the Australian education system. If I am forced to leave Australia, it will be almost impossible for me to find work at my age in India.

    In 2015 I was granted a subclass 457 employer sponsored visa and had been working as a cafe and restaurant manager for 2.5 years and became eligible for my employer to sponsor me for permanent residence. He applied for an employer sponsored subclass 186 permanent resident visa, however after 2 years of processing, far longer than was estimated by the immigration department, in 2019 immigration department finally processed and refused the subclass 186 visa application because by then the employer had discontinued the operation of the business.

    By the end of 2019 we moved to Cooma with a Bridging Visa E and I started working at two aged care homes as a carer during COVID-19.

    In 2021 we applied for a 482 visa with a new employer and I worked with the employer for the last 3 years as a restaurant manager, working very hard and long hours. Sadly the employer failed to disclose they had a negative immigration record and as a result of that and other issues involving the business, the nomination for my position was refused. My visa application for the position was never even considered since the nomination being approved was a requirement to consider the visa application.

    At the same time I have also been working at the local nursing home in Tumut since February 2022. My son is also working at the same nursing home where they are always struggling to find enough staff. My family and I have been actively contributing to the Australian community. My daughter is also working at Coles - both children have been working since they were in high school.

    My family has integrated into the local community and I am an active member of the multicultural community. We are also members of the local catholic parish in Tumut.

    Regarding the employer nomination refusal for NAZZ Enterprises Pty Ltd, the nomination was apparently refused because of problems with the employer, their history, and the nomination. I find this extremely distressing because it is yet another instance of what I encountered before when I worked as a cafe and restaurant manager from 2015-2019 and, yet again, the nomination was refused. These refusals have nothing to do with me or the quality of my work, or how hard I work, or the fact that I have worked hard to meet each and every requirement of my visa. As a negative outcome at the Tribunal is guaranteed by the employer's nominations refusal being affirmed, I can only comment about my circumstances and make an urgent request to the Tribunal.

    In my view, the outcome here for me, as before in 2019, is unfair and unjust. I should not be penalised because of the problems of my employer, yet that is exactly what happened.

    Given my history, the integration of my family with Australia, and perhaps most importantly the educational circumstances of my children, I respectfully and urgently request that the AAT Tribunal refer my case for Ministerial Intervention so that it has the best chances of success in the Ministerial Intervention process. A referral for Ministerial Intervention could make a huge difference in my life, and in the lives of my children.

    I respectfully request the Tribunal accept the circumstances of me and my children as compassionate circumstances and consider my case for referral to the Minister.”[1]

    [1] Prepared and transcribed as submitted by applicant.

16. The Tribunal has carefully considered the applicant’s submission and notes the applicant’s response in regard to the Tribunal’s decision to affirm the decision not to approve the associated nomination matter.

17. Whilst the Tribunal has empathy for the applicants, the Tribunal has no discretion in this matter and must apply the legislation as it stands. As explained to the applicant at the hearing, the Tribunal must apply the relevant law. 

18. At the hearing of 16 January 2024, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in this case, (inter alia) the visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved.

19. Clause 482.212 (1) as applicable in this case, requires that the nomination identified in the application has been approved under section 140GB of the Act. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.482.212(1) of Schedule 2 to the Regulations.

20. As the first named applicant does not meet an essential criterion for the grant of a subclass 482 visa, cl.482.212 of Schedule 2 to the Regulations is not met.

21. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

22. In relation to the second named applicant (Mr Alphonse Charles Pereira), third named applicant (Mr Amith Alphonse) and fourth named applicant (Miss Ananya Sara Alphonse), the Tribunal notes that cl.482.312 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

23. As the applicant (Mrs Mary Sonia Pereira Alphonse) has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 482 visa, it follows that the second named applicant (Mr Alphonse Charles Pereira), third named applicant (Mr Amith Alphonse), and fourth named applicant (Miss Ananya Sara Alphonse), as a member of Mrs Mary Sonia Pereira Alphonse’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

24. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    Request for referral to the Minister

25. The Tribunal has no discretion to waive the specific requirements in cl.482.212(1) which prescribe the only ways in which that clause can be met. Nor does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.

26. 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.

27. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

28. 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. 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.

29. The circumstances which may be unique or exceptional in this case include, relevantly:

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

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

    Is this an appropriate case to refer to the Minister?

30. The applicant is a 50-year-old national of India who has resided in Australia since January 2010. Department records show the children have resided in Australia since July 2013.

31. The Tribunal acknowledges that the intent of the Temporary Skill Shortage (subclass 482) visa program is to enable Australian businesses to temporarily fill skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident.

32. In the circumstances of this matter, the applicant was granted and subsequently held a 457 visa for approximately five years. In evidence before the Tribunal the applicant’s former sponsoring employer discontinued operating their business and the applicant relocated to Cooma, working during the COVID 19 pandemic as a carer in local nursing homes. The applicant continues to work part time in a local aged care facility. In 2021, the applicant commenced work with a potential sponsor who submitted a nomination application to the Department. This application was subsequently refused by the Department on 12 March 2021. Consequently, the applicants’ subclass 482 applications were refused by the Department on 14 April 2021. The nominator and the applicants respectively sought review before the Tribunal, with the nomination matter affirmed by the Tribunal on 29 January 2024.

33. In submissions before the Tribunal, the applicants submit that the family have integrated well into the Australian community, having resided in Australia for almost fourteen years and now residing in regional Australia (Tumut NSW). The children have undertaken their formative schooling in Australia with son, Amith currently enrolled at Charles Sturt University Wagga Wagga in Bachelor of Nursing. Daughter Ananya is enrolled in studies in Diploma of Nursing at TAFE commencing March 2024. Both children work part time. Amith works in an aged care facility and Ananya at Coles. Amith has one year left to complete his Degree in Bachelor of Nursing and Ananya commences her studies in March.

34. The Tribunal does not consider all 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.

35. While the applicants do not necessarily contribute benefits that may be considered 'unique or exceptional' in Australia, the Tribunal acknowledges that the effects of COVID-19, along with the changing economic landscape have created challenges in attracting and retaining skilled workers particularly in regional Australia and in the aged/healthcare sectors. The Tribunal accepts that the applicants have contributed by working in regional Australia and will continue to contribute to the regional Australian economy.

36. The Tribunal is additionally cognisant that both children are enrolled in tertiary education in Australia, in nursing. Amith has one year left to complete his nursing degree and Ananya is about to commence her diploma of nursing. Both children are enrolled in studies in a vocation with notable skills shortage.

37. Having regard to the circumstances of the applicants as outlined above, the Tribunal considers that the pending disruption to the children’s tertiary studies in nursing and their intended vocations, be afforded compassionate consideration by the Minister. Additionally having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.

38. The Tribunal therefore requests that the matter be referred to the Department to be brought to the Minister's attention.

    DECISION

39. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Karen McNamara
    Member