Schmitz (Migration)

[2017] AATA 1113

Schmitz (Migration) [2017] AATA 1113 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Ulf Schmitz
Mrs Sandra Schmitz
Ms Carla Malena Schmitz
Ms Edda Emilia Schmitz

CASE NUMBER:  1621439

DIBP REFERENCE(S):  BCC2016/1462431

MEMBER:Denise Connolly

DATE:5 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.234 of Schedule 2 to the Regulations.

Statement made on 05 July 2017 at 12:05pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct entry scheme – Skills Assessment – Life Scientist (General) – Nominated by Australian scientific government agency – Exempt class of persons 

LEGISLATION

Acts Interpretation Act 1901

Migration Act 1958, s.65
Migration Regulations 1994, Schedule 2, cl 186.234, IMMI 15/083

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 24 November 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 April 2016. 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 (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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Life Scientist (General), having been sponsored by Centenary Institute of Cancer Medicine and Cell Biology. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because he did not provide evidence that, at time of application, his skills had been assessed as suitable for the nominated occupation: cl.186.234(2). The delegate also found that the applicant was not in a class of persons (exempt persons) specified by the Minister for the purposes of meeting cl.186.234(3).

5. The applicant appeared before the Tribunal on 16 June 2017 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills assessment or exemption

8. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

9. For this criterion, the relevant class of exempt persons has been specified in IMMI 15/083[1]. Relevantly it states as follows:

   [1] IMMI 15/083 was replaced by IMMI 17/058 on 1 July 2017. The Tribunal notes however that the issue under consideration in this review is a time of application requirement. Therefore the Tribunal is of the view the appropriate instrument to apply is that in place at time of application, IMMI 15/083. In any case the wording of the specification in IMMI 15/083 regarding the class of persons exempt for the purposes of cl.186.234(3) in Item 5 paragraphs a) and b) and the wording in IMMI 17/058 at Item 8 paragraphs (a) and (b), regarding the same exemption, is identical.

   5.   SPECIFY the following class of persons for the purposes of subclause 186.234(3) of the Regulations:

   Class 4

   Persons who are employed in certain occupations, as follows:

   a)Researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who have applied for a visa under the Regulations to occupy a position as nominated by Australian scientific government agencies; and

   b)Academics who have applied for a visa under the Regulations to occupy a position as nominated by an Australian university in Australia. An academic is a person to be employed at an Academic Level of A, B, C, D or E, in the position of a:

   i.University Tutor (ANZSCO: 242112);

   ii.University Lecturer (ANZSCO: 242111); or

   iii.iii.  Faculty Head (ANZSCO: 134411).8    Subclass 186 applicants (Direct Entry stream) who are not required to meet certain criteria relating to skills and employment history

10. For the skills assessment, the assessing authorities for each occupation have been specified. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

11. The applicant has been sponsored by the Centenary Institute of Cancer Medicine and Cell Biology (the Centenary Institute), an Australian medical research institute, to be employed in the nominated occupation Life Scientist (General) (ANZSCO 234511).  The specified assessing authority for this occupation is VETASSESS.

12. The applicant did not obtain a skills assessment, having submitted that he is an exempt person and therefore not required to have his skills assessed by the specified assessing authority. The delegate wrote to the applicant advising preliminary view was that the applicant was not exempt because he had applied to occupy the position Life Scientist with an entity that is not an Australian university. The delegate referred to a copy of the Sydney Medical School organisational structure for the University of Sydney, provided by the applicant, showing that, while it includes the Centenary Institute, it is described as an external entity. (The Tribunal is of the view that the delegate appears to have conflated the exemptions in paragraphs a) and b) and this may have caused some confusion because, as a scientist, for reasons given below, the relevant paragraph in IMMI 15/083 is at Item 5 paragraph (a).)

13. The applicant provided to the Department a letter from the Centenary Institute dated 15 September 2016 confirming that he had been employed as a Research Officer at the Institute since 6 July 2015. His role as researcher is in the Gene and Stem Cell Therapy Group. A position description was provided. The applicant also provided a letter from the University of Sydney dated 26 November 2015 regarding the award of the conjoint title of Senior Lecturer, to pursue teaching and research activities in the Sydney Medical School, his title being effective from 1 January 2016 to 12 June 2019. The letter explains that his ongoing appointment is contingent upon his holding at the same time his present position at the Centenary Institute. The Schedule attached to the letter states, in part, ‘Your affiliation does not: a) establish an employment relationship; b) alter any employment relationship that currently exists (unless it is intended to supersede that relationship; c) entitle you to any salary payments…’.

14. There is a letter on the Department’s file addressed to the delegate from the Centenary Institute. Prof Matthew Vargas and Dr Nick Pearce have written to the Department advising that the applicant is an exemplary postdoctoral researcher with a PhD in Bioinformatics from the University of Rostock, Germany and that his track record in biomedical research has proven to be superior to the majority of other researchers at this stage of his career. They advised that the National Health and Medical Research Council (NHMRC) has awarded the applicant an Early Career Fellowship to fund his research for the next 4 years. This funding enables early career researchers to conduct innovative medical research at the highest level for the benefit of all Australians. One of the conditions of acceptance of the NHMRC funding is that the applicant is granted permanent residence. The letter indicated this condition was required to be in effect by 31 October 2016 for the purposes of the funding. It is submitted the rejection of his permanent residence application will result in the loss of the funding and the loss of important Bioinformatics expertise in the Australian research environment. The authors invited the delegate to discuss the structure of the Centenary Institute and its affiliation with the University of Sydney to demonstrate that the applicant can meet the exemption, due to his Senior Lecturer title at the University of Sydney. It was explained that the Centenary Institute is an independent medical research institute affiliated with the Royal Prince Alfred Hospital and the University of Sydney. Postdoctoral staff apply for the University’s titles which allow them to supervise students and undertake lecturing duties at the University.

15. The delegate, in considering the exemptions in IMMI 15/083, found that the applicant had not provided evidence that he was earning at least the equivalent to the current Australian Taxation Office’s top individual income tax rate. He also formed the view that he did not meet the requirements for the Class 4 exemption in IMMI 15/083. The delegate’s reasoning indicates that he was of the view that if the applicant could have demonstrated that he had been nominated by an Australian university he would have been exempt under Class 4. As the delegate formed the view that the applicant was not a person in a class of persons specified by the Minister in an instrument in writing he concluded the applicant did not meet cl.186.234(3) and therefore did not meet cl.186.234.

    Evidence provided to the Tribunal

16. Prior to the hearing, the applicant’s representative provided a written submission which essentially states as follows. The applicant had assumed that, if his request to be exempted from providing a skills assessment was refused, he would have an opportunity to then obtain and provide a skills assessment. The delegate had indicated that in order to be considered exempt the applicant needed to demonstrate that the sponsor, Centenary Institute, was clearly an associated entity, rather than only an affiliate of, the University of Sydney. The representative argued that the Centenary Institute is considered to have a stronger association than mere affiliation with the University. He provided various examples of how the Centenary Institute does not operate independently from the University of Sydney. For example the Executive Director is an employee of the University and the Centenary Institute was formerly called the Department of Experimental Medicine indicating its Department status at the University.

17. The representative asserted that the applicant is a person for whom no appropriate ANZSCO code exists as he fulfils many roles in his appointment. However he clearly meets the requirements of the Class 4 exemption. He holds a PhD degree in Bioinformatics and works at the Centenary Institute as a research scientist. He holds an appointment as a conjoint title of Senior Lecturer at the Sydney Medical School where he gives lectures and seminars and also supervises university students in their higher degree projects. His work is at the cutting edge in terms of technical skill and research experience. His PhD thesis has received the highest distinction and he won the prestigious Peter Dougherty Fellowship from the NHMRC. His work is internationally recognised as evidenced by numerous invitations to write articles, chapters and edit whole books. He receives invitations to give lectures and seminars and to speak at international conferences. While the applicant’s employment contract is with the Centenary Institute, it contains mandatory requirements that he apply for research funding from agencies such as the NHMRC. His employment at the Centenary Institute is a mandatory requirement for the position of conjoint Senior Lecturer at the University of Sydney. It is asserted that the employment at the Centenary Institute is indivisible from the role at the University of Sydney. While he is waiting for his visa to be approved his employment at the Centenary Institute is being paid by funding from the University of Sydney. This demonstrates the relationship between the Centenary Institute and the University of Sydney. It is asserted that the Department’s interpretation of the Class 4 exemptions is not the interpretation that best achieves the purpose of the Migration Act.

18. The representative notes that the delegate recorded that the applicant had not submitted clear and quantifiable evidence to demonstrate that the Centenary Institute is an associated entity of the University of Sydney or that the sponsoring identity is an Australian government agency. It is asserted that this interpretation does not achieve the purpose of the Migration Act, nor considered the purpose of the exemption clauses, and that the delegate has neglected to consider the unique skill set and employment situation of the applicant.

19. The representative refers to the Acts Interpretation Act 1901 which states that in interpreting a provision of an Act, the interpretation that would best achieve the purpose and objective of the Act is to be preferred. The representative notes that the object of the Migration Act is to regulate, in the national interest, the coming into, and presence in, Australian noncitizens. It is asserted that it is not in the national interest to interpret the exemption clause in a way which results in a decision to decline the applicant’s visa application. The representative asserts that the implied purpose of the requirement for a mandatory skills assessment by VETASSESS is to ensure that only skilled workers obtain an employer nomination visa. Logically an exemption to this requirement would only be warranted if an appropriate skills assessment had been undertaken by a credible approved body other than VETASSESS. The implied purpose of the exemption clause is to avoid an unnecessary or inappropriate skills assessment being undertaken. Having regard to the wording of Class 4 the representative asserts it would be unnecessary to have a VETASSESS skills assessment undertaken when an Australian government research agency or an Australian university is the appropriate skills assessor and as already undertaken an appropriate skills assessment of the applicant. The representative advised that the applicant has already had an extensive skills assessment undertaken by the Australian government research agency, the NHMRC, in association with his application for the Research Fellowship. He provided evidence regarding the rigorous skills assessment undertaken by the NHMRC due to the complexity and nature of the applicant’s profession. He asserts it is only logical that the government research agency or a university would have been intended by the legislature as being the appropriate skills assessor. It is asserted that because the applicant has already had a skills assessment undertaken by both the NHMRC and the University of Sydney, and because his employment at the Centenary Institute is not divisible from the University of Sydney or the NHMRC funding, then the Class 4 exemption should apply. It is asserted the role with University is encompassed by the Centenary Institute employment contract. There is no other separate employment contract. However the applicant has a staff profile on the University of Sydney webpage and to be employed at the Centenary Institute the applicant must apply for funding from agencies such as the NHMRC. The representative asserts that the delegate failed to recognise that the three entities are indivisible.

20. It is also submitted that it is in the national interest for the Department to approve the application for the visa because of the applicant’s work in ground breaking cancer research, and training other Australian doctors and researchers. It is asserted that if the Minister considered this case, he would likely determine that it is in the national interest for the applicant to undertake his medical research because of the benefits to Australia. It is asserted that the Centenary Institute and the University of Sydney fulfilled the legal criteria required to be viewed as associated entities, having met the definition of an associated entity in s.50AAA of the Corporations Act 2001.

21. At the hearing the Tribunal discussed with the applicant the requirements of cl.186.234 and the Class 4 exemption. The following is a summary of the evidence provided at the hearing.

22. The Tribunal went through the various classes of persons exempt for the purposes of cl.186.234(3). There is no dispute that the applicant does not meet the Class 1 exemption as his earnings will not be at least equivalent to the current ATO’s top individual income tax rate. It was also confirmed that the applicant had not held a Subclass 444 visa or 461 visa (Class 2).

23. The applicant confirmed that the majority of the funding for the Centenary Institute comes from the NHMRC and the University of Sydney. As part of his role at the Centenary Institute he holds the honorary title of conjoint Senior Lecturer. The University plays a significant role in decision-making at the Institute including in relation to funding decisions. The Centenary Institute is considered to be part of the University as it plays a vital role in providing training for students undertaking Masters and Honours degrees. The applicant essentially performs two roles; scientist for the Centenary Institute, and lecturer for the University of Sydney. He considers the roles to be inseparable. He will rely on the NHMRC funding for the research to be undertaken, if the visa is granted.

24. The Tribunal noted that the applicant has been nominated to work in the position of Life Scientist. It explained to the applicant that it appears that the delegate had conflated the two paragraphs in Class 4 when he indicated that the applicant needed to demonstrate that the Centenary Institute is an associated entity of the University of Sydney. The Tribunal explained that it was of the view that, given the applicant has been nominated to occupy a Life Scientist position with his sponsor, Centenary Institute, the relevant exemption in Class 4 falls within paragraph a). The Tribunal explained that it understood the applicant has not been nominated by Sydney University to be employed at the academic level in a position of university tutor, university lecturer or faculty head. It explained that in these circumstances it would have to be satisfied that the applicant, employed as a researcher or scientist, has been nominated by an Australian scientific government agency. It questioned whether the Centenary Institute is such an agency. It discussed the meaning of ‘Australian scientific government agencies’, which is not defined in the legislation. While not bound by the Department’s guidelines it noted that the agencies listed in those guidelines all appear to be directly administered by public servants in government Departments, and responsible to a Minister. The Tribunal noted the Centenary Institute appeared to be independent. When asked if he considers himself a public servant, he indicated he does, broadly speaking.

1. The representative submitted that all of the professors involved in the Centenary Institute are public servants. The Centenary Institute is located on the grounds of Royal Prince Alfred Hospital and the University of Sydney. Structurally the organisation is headed by people from the University and RPA; doctors, scientists and researchers, some of whom also see patients at the hospital. He asserted there is a strong association between the hospital, the University and the Institute. The representative asserted that a large part of its funding comes from the NHMRC, that is, from the government. The Tribunal explained that, while the term is not defined in the legislation, it may form the view that a government agency is administered by public servants who work in a Government Department under direction and ultimately responsible to the relevant Minister. The representative asserted that such an agency should not be restricted to a government department.

2. The representative requested that the Tribunal take oral evidence from the applicant’s supervisor, Prof Rasko, who was overseas at the time. The Tribunal adjourned the hearing to give the applicant opportunity to make contact with Prof Rasko before it took in his evidence so that he could be made aware of the issue under discussion. Unfortunately the applicant was not able to contact Prof Rasko by telephone so the Tribunal agreed to postpone making its decision to allow him to provide further written evidence.

3. After the hearing the representative provided evidence in relation to the assessments undertaken by the NHMRC demonstrating that the applicant’s application for the Early Career Fellowship was assessed at the Excellent level in all categories. He also provided a copy of the applicant’s employment agreement with the Centenary Institute and his position description. There is also a letter from the University of Sydney regarding his award of the conjoint title of Senior Lecturer to pursue teaching and research activities in the Sydney Medical School.

4. The applicant has provided to the Tribunal a letter from Prof Rasko dated 24 June 2017 in which he submits that the Centenary Institute should be considered to be functioning as an Australian scientific government agency, as evidenced by its mission to undertake scientific and medical research to benefit Australians, and its strong ties with the University of Sydney and the Royal Prince Alfred Hospital. He explains that the senior staff at the Institute are government employees at RPA. Most of the peer-reviewed funding supporting the Institute is provided by the NHMRC and the Australian Research Council and the NSW state government.

5. The representative provided another written submission in which he asserts that the Centenary Institute should be considered an Australian government agency on the basis of Prof Rasko’s letter. He asserts that the Department made clear error in deciding that the Centenary Institute and the University of Sydney were not associated entities. The concept for the Institute was initiated by the NSW government to achieve research goals for the benefit of Australia. Legislation was passed to enable the Institute to be established. The Institute is the vehicle that enables the RPA campus and the University of Sydney to access substantial grants and infrastructure funding from the government. It is submitted that the University of Sydney is an Australian public research university and an entity of the NSW government, and therefore an Australian state government agency.

6. The applicant’s wages are paid by funding from NHMRC and the government through the University of Sydney. Given the intention of the exemptions, and an acknowledgement that VETASSESS is not qualified to assess the skills of a specialist scientist, it is submitted it is reasonable and correct under the rules of statutory interpretation to find that the Centenary Institute should be considered an Australian scientific government agency for the purposes of exemption under Class 4 a). Such an interpretation would be in keeping with the national interest an expressed object of the Migration Act.

7. The representative also submits that the exemption under Class 4 b) should apply because the nominated role of Life Scientist includes an intrinsic role as a university lecturer for the University of Sydney. The nominated role of Life Scientist requires the applicant to work as a lecturer and tutor for the University, within the Institute when teaching, supporting, supervising and training medical and research students. The role of Life Scientist may be different if the applicant was working somewhere else but, relevant to the wording of the Class 4 exemption, the actual position should be considered, and in this case the actual position requires the applicant to not just work as a scientist but also as a lecturer.

8. The representative submits that the implied purpose of the Class 4 exemptions is to ensure that an adequate skills assessment has been undertaken for unusual applicants. VETASSESS is unlikely to be able to undertake an adequate skills assessment of a person of the calibre of the applicant. The University of Sydney has undertaken a skills assessment of the applicant and deemed that he is adequately skilled to undertake the role of conjoint Senior Lecturer in the Medical School of the University.

   Assessment of the evidence

9. On the basis of information provided in the visa application, confirmed at the hearing, the Tribunal finds the applicant is currently employed by the Centenary Institute as a research officer.  On the basis of material on the Department’s paper file, and its electronic records, Centenary Institute has had approved a nomination application, nominating the applicant to be employed in the position of Life Scientist.

10. The Tribunal accepts the reasoning given for nominating the position ‘Life Scientist’. Having regard to his position description, attached to the employment contract with Centenary Institute, the Tribunal accepts the applicant is employed to undertake complex experimental work and laboratory management. Having regard to the ANZSCO description for Life Scientist the Tribunal is satisfied the applicant, while referred to as a Research Officer in his employment contract with Centenary Institute, is employed in the position of Life Scientist.  This is relevant because the exemption in IMMI 15/083 Item 5 Class 4 requires persons to be employed in certain occupations, including scientists.

11. The Tribunal notes that IMMI 15/083 specifies, in summary, the following class of persons for the purposes of cl.186.234(3):

    Persons who are employed in certain occupations as follows:

    ·researchers, scientists and technical specialists who have applied for a visa to occupy a position as nominated by Australian scientific government agencies; and

    ·academics who have applied for a visa to occupy a position as nominated by an Australian university in Australia.

12. Paragraph b) specifies that an academic is a person to be employed at an academic level of A, B, C, D or E, in the position of a university tutor, university lecturer or faculty head.

13. On the basis of the information provided in the visa application, supported by the Department’s records regarding the nomination approval, the Tribunal finds that the applicant has applied for the visa to occupy a position of Life Scientist as nominated by Centenary Institute. His employment contract is with Centenary Institute. The Tribunal notes that the University of Sydney has awarded the conjoint title of Senior Lecturer to pursue teaching and research activities in the Sydney Medical School. However it also notes that the Schedule attached to the advice regarding that award explicitly states that the applicant’s affiliation with the University of Sydney does not establish an employment relationship or altered any employment relationship that currently exists.

14. The Tribunal has considered the representative’s argument that the applicant should be considered to have met Class 4 b) because the nominated role of Life Scientist includes an intrinsic role as a university lecturer for the University of Sydney and requires the applicant to work as a lecturer and tutor for the University. While the Tribunal accepts that the applicant has been awarded the conjoint title of Senior Lecturer, and will undertake lecturing duties as part of his employment with the Centenary Institute as agreed in his contract (it states that he will be assigned employment responsibilities in relation to other entities which are related to, in joint venture with, or business partners of the Institute from time to time), the position nominated is not that of an academic.. Centenary Institute (not the University of Sydney) nominated the position of Life Scientist. The Tribunal is not satisfied therefore that the applicant meets the definition set out in Class 4 b).

15. The applicant and his representative have submitted that the Tribunal should find that the Centenary Institute is an associated entity of the University of Sydney. This is in response to the delegate’s conclusion that, had the applicant established that the Centenary Institute is an associated entity of the University, he would have been considered exempt. The Tribunal does not agree with the delegate’s view. As discussed above the applicant did not apply for the visa to occupy a position as nominated by an Australian university. His position is not that of an academic employed at an academic level. While the Tribunal accepts that, as a consequence of being employed at the Centenary Institute, the applicant has been awarded the conjoint title of Senior lecturer to pursue teaching and research activities at the Medical School, this is not the position nominated. The position nominated is that of a Life Scientist.

16. The representative has argued, first for the purposes of Class 4 a) that the Tribunal should accept that Centenary Institute is an associated entity of the University of Sydney and that the University of Sydney is an Australian scientific government agency. The Tribunal has considered whether the university is an ‘Australian scientific government agency’. It notes that this term is not defined in the legislation. In these circumstances it is appropriate to consider the ordinary meaning of the words. The Macquarie online dictionary defines scientific, in part, as ‘relating to science or the sciences: scientific studies; occupied or concerned with science: scientific researchers; regulated by or conforming to the principles of exact science: a scientific method; systematic or accurate’. Having considered the purpose of the Centenary Institute there is no doubt that it is a scientific agency.

17. The Tribunal has also considered the definition of government provided in the Macquarie online dictionary which includes: the authoritative direction and restraint exercised over the actions of people in communities, societies, and states; direction of the affairs of a state, etc.; political rule and administration, the form or system of rule by which a state, community, etc., is governed, the governing body of persons in a state, community, etc.; the executive power; the administration.

18. The Tribunal has also considered the information contained in the Departmental guidelines and while it accepts that it is not bound by those guidelines it is of the view they are useful in considering the types of agencies which may fall within this exemption. The Tribunal notes that the various agencies listed are in fact managed by Australian government departments. For example the CSIRO is a Commonwealth agency which is responsible and accountable to the Commonwealth[2]. The Australian Astronomical Observatory is a division of the Department of Industry, Innovation and Science, an Australian government department. While the list set out in the guideline is not exhaustive Tribunal notes that the connection between each of the agencies and a government department is easy to establish. Centenary Institute on the other hand describes itself as an independent medical research Institute.

    [2] >

    However the representative has mentioned in one of his written submissions that the Centenary Institute was established by legislation. The Tribunal has now identified that legislation - Centenary Institute of Cancer Medicine and Cell Biology Act 1985. That Act states that the responsible Minister is the Minister for Medical Research. Section 4 of that Act states the Institute shall have and may exercise the functions conferred or imposed on it by or under the or any other Act. Section 7 provides that the Centenary Institute’s Board shall be appointed by the Governor (of NSW). That section also requires that the Board include persons nominated by the Minister administering the Act, persons nominated by the Minister of State for Health of the Commonwealth, persons approved by the Sydney Local Health District, the Vice-Chancellor of the University of Sydney or the Vice-Chancellor’s nominee, and the Dean of the Faculty of Medicine in the University of Sydney or the Dean’s nominee, approved by the Senate of that University. The Act dictates how the Centenary Institute will be administered, its membership, and its financial arrangements.

19. The Tribunal notes that Prof Rasko has written to it on 24 June 2017. It notes Prof Rasko is a professor at the Sydney Medical School of the University of Sydney’s head, gene and stem cell therapy program, Centenary Institute and Head of Department, cell and molecular therapies, Royal Prince Alfred Hospital. The Tribunal accepts that several of the staff at the Centenary Institute are also employed at the University and RPA. The Tribunal also accepts that much of the funding for the Centenary Institute comes from the NHMRC, a government agency.

20. Having considered all of this information, and in particular the legislation governing the administration of the Centenary Institute, the Tribunal is satisfied the Centenary Institute is a government agency. While it describes itself as independent the Tribunal is of the view this may refer to its commitment to research without ties to, and control by, a particular commercial or business organisation. Clearly the Institute has responsibility to the Minister for Medical Research and must conduct itself in accordance with its Act. While it enjoys some independence it is essentially administered under NSW legislation and hence the government. In these circumstances the Tribunal is satisfied the Centenary Institute is a government agency.

21. Therefore on the material before it, the Tribunal is satisfied that the position has been nominated by an Australian scientific government agency. Accordingly it is satisfied that the applicant meets the description for exempt persons set out in Class 4 a). Given he was employed in the position by Centenary Institute at the time he applied for the visas it is satisfied he met this description at time of application. The Tribunal is satisfied the applicant was specified in the exempt class of persons pursuant to Item 5 Class 4 a).

22. As the applicant at the time of application is a person in a class of persons specified by the Minister in an instrument in writing for cl.186.234(3), the applicant meets cl.186.234(1) and cl.186.234.

23. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.186.234 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.234 of Schedule 2 to the Regulations.

    Denise Connolly
    Member