San (Migration)

[2017] AATA 388

San (Migration) [2017] AATA 388 (16 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Aung San

CASE NUMBER:  1607742

DIBP REFERENCE(S):  BCC2015/3118030

MEMBER:Katie Malyon

DATE:16 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 16 March 2017 at 1:22 pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – Full time work in specified regional area for 1 year as holder of specified skilled visas – Senior IT/Network Engineer – 7 months’ experience – Qualifications – Favourable skills assessment – Ministerial intervention

LEGISLATION

Migration Act 1958, s 65, 351

Migration Regulations 1994, Schedule 2, Schedule 6A, cl 489.512, cl 887.111, cl 887.212, cl 887.213, Condition 8539, IMMI 05/077

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 Immigration on 16 May 2016 to refuse to grant the applicant, Mr Samuel Aung San, a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr San applied for the visa on 25 October 2015. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  A Subclass 887 (Skilled - Regional) visa (Subclass 887 visa) is a permanent residence visa for eligible visa holders who have lived for at least 2 years and worked for at least 1 year in a specified regional area in Australia. Applicants are required to have held a specified skilled visa or visas, or a bridging visa granted in relation to an application for such a visa, at the time of application for the Subclass 887 visa: cl.887.212 of Schedule 2 of the Regulations.

3. The delegate refused to grant Mr San the visa because he did not satisfy cl.887.213 of Schedule 2 to the Regulations as he had not demonstrated that he had worked full-time in a specified regional area for a total of at least 1 year as the holder of 1 or more of the specified skilled visas mentioned in cl.887.212 of Schedule 2 of the Regulations.

4. Mr San appeared before the Tribunal on 15 March 2017 by way of video conference from Darwin to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies cl.887.213 of Schedule 2 of the Regulations.

   Work in a regional area

7. Clause 887.213 requires that, at the time of visa application, the applicant has worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more eligible visas. The term ‘specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that was specified by the Minister in the relevant written instrument at the time the first of any specified skilled visa was granted.

8. Mr San presented evidence to the Department regarding his employment experience whilst in Australia.  This included evidence that he worked full-time as a Senior IT/Network Engineer for 7 months with JR Business Communications Pty Ltd (JR Business Communications) in Yarrawonga NT 0830 from 30 March 2015 to 25 October 2015 (the date of the lodgement of his Subclass 887 visa application). In addition, Mr San provided evidence of having worked casually for 3 days with JAVit in Darwin in October 2014. The Tribunal notes that, as at the time of Mr San’s Subclass 887 visa application, the Minister has specified that the whole of the Northern Territory is a ‘specified regional area’ under item.6A1001 of Schedule 6A: IMMI 05/077 of 1 November 2005.

9. In his written submissions and oral evidence to the Tribunal, Mr San confirmed that he has now worked for nearly 2 years with JR Business Communications since starting with the business on 30 March 2015.  He also provided the Tribunal with a favourable skill assessment from the Australian Computer Society (ACS) dated 23 September 2016.  However, he acknowledged he did not meet the 1 year (that is, 12 months) work experience in Australia requirement before applying for his Subclass 887 visa on 25 October 2015 (emphasis added).  He admitted he only has just over 7 months experience.   

10. Mr San confirmed that he did not have the benefit of professional advice at the time he applied for his Subclass 887 visa or, indeed, any of his earlier visas for Australia.  Furthermore, he admitted that, although he was granted a Subclass 475 Skilled-Regional Sponsored visa (Subclass 475 visa) on 2 November 2011 permitting a stay of up to 3 years from the date of first arrival in Australia, he did not take up the opportunity to relocate from Singapore to Australia until 21 months later on 8 August 2013.  He had, in the meantime, made a short visit to Australia for just 5 days, arriving on 1 October 2012.  After his move from Singapore, he initially found it difficult to find work despite sending multiple applications to recruitment agencies and employers in the Northern Territory.  Eventually, he found work with JR Business Communications and has been with that business ever since.  Before his Subclass 475 visa was due to expire on 1 October 2015 (that is, the 3 year anniversary of his first arrival in Australia on his short visit) Mr San applied for a Subclass 489 Skilled-Regional (Provisional) visa (Subclass 489 visa). That visa was granted for one month only and enabled Mr San to remain until 2 November 2015 consistent with the provisions of cl.489.512 of Schedule 2 of the Regulations which permit a stay in Australia for 4 years after the date of grant of a Subclass 475. As noted above, Mr San’s Subclass 475 visa was approved on 2 November 2011 and so he was permitted to stay in Australia until 2 November 2015 once his Subclass 489 visa was approved. He told the Tribunal he thought he would have a lot longer before he had to lodge his Subclass 887 visa application.

11. Both a Subclass 475 visa that is subject to condition 8539 and a Subclass 489 visa that is subject to condition 8539 are eligible visas for the purposes of a Subclass 887 visa application.  The Tribunal notes that condition 8539 essentially requires the holder to live, study and work only in a specified regional area.  Departmental records confirm that Mr San’s Subclass 475 visa and his subsequent Subclass 489 visa were granted subject to condition 8539.  

12. Mr San’s employment records confirm that, by living and working in the Northern Territory, he has complied with condition 8539 attached to both his Subclass 475 and his Subclass 489 visas.  However, although Mr San confirmed he has now worked for nearly 2 years in the Northern Territory, he concedes that he did not work for at least 12 months as the holder of one or more eligible visas at the time of his Subclass 887 visa application on 25 October 2015. 

13. On the basis of evidence provided, the Tribunal finds that Mr San’s period of work prior to his Subclass 887 visa application as 7 months and 3 days.  In the circumstances, the Tribunal finds that Mr San has not worked full-time in a specified regional area for a total of at least one year as the holder of one or more specified eligible visas at the time of his application.

14. Accordingly, the Tribunal finds that Mr San does not satisfy cl.887.213 of Schedule 2 of the Regulations.

    Is this an appropriate case to refer to the Minister?

15. The Tribunal discussed with Mr San whether he might approach the Minister to request that the Minister intervene in his case pursuant to s.351 of the Act. This gives the Minister discretion to substitute, for a decision of the Tribunal, another decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. Since he has not had the benefit of any professional advice to date, the Tribunal provided Mr San with a Tribunal brochure with details of where he may seek immigration assistance including details regarding pro bono service providers in the Northern Territory and immigration law specialists.

16. Having regard to Mr San’s circumstances, the Tribunal considers an approach to the Minister may be appropriate in his case.  In this regard, it is noteworthy that Mr San has not had the benefit of any professional advice and was unaware that, in the circumstances of his case, his Subclass 489 visa would afford him the opportunity of including only one additional month towards the required 12 months’ work experience in Australia required as a pre-requisite for a Subclass 887 visa application.  The Tribunal also notes he has a recent favourable skills assessment from the ACS as a Computer Network in Systems Engineer ANZSCO 263111.  He holds both a Bachelor and Masters degree in Information Technology which have been assessed by the ACS as comparable to an AQF Master Degree with a major in computing and AQF Bachelor Degree with a major in computing respectively.  He also has more than 20 years’ experience as an IT specialist.  Furthermore, Mr San has been employed by JR Business Communications in Darwin for nearly 2 years.  He told the Tribunal that his work takes him to multiple clients’ sites, including many remote businesses across the Northern Territory.  Prior to finding work with JR Business Communications, Mr San made vigorous efforts to find work in the Darwin area and has provided the Tribunal with copy advertisements for positions that he applied for together with evidence of self-initiated communications with more than 30 significant businesses in the Northern Territory and subsequent communications with prospective employers.  Based on his efforts to secure employment, it is evident that Mr San has made consistent purposeful attempts to secure work in the Northern Territory when he relocated to Australia from Singapore.

17. Mr San also told the Tribunal that he has undertaken volunteer work for refugees from Burma as well as work in the Burmese community in Darwin helping people in need of an interpreter, assistance with paperwork and any IT requirements.  In addition, he said he has participated in many social activities such as fundraising for the local Buddhist community.

18. The Tribunal is satisfied that, if Mr San chooses to approach the Minister, he is in a position to secure professional advice from an appropriately qualified representative who could assist him with this process and document his case.

    DECISION

19. Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Katie Malyon

    
    Member