Vu (Migration)

[2020] AATA 3323

Vu (Migration) [2020] AATA 3323 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Giang Huy Vu
Mrs Thi Thu Ha Dang
Mr Giang Khoi Vu

CASE NUMBER:  1801207

HOME AFFAIRS REFERENCE(S):          BCC2017/1739534

MEMBER:Phoebe Dunn

DATE:30 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2020 at 2:59pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Web Developer – subject of an approved nomination – nomination application refused – strong compassionate circumstances – no harm or hardship to an Australian citizen – unfair or unreasonable results – ongoing nature of employment – character and contribution to the general community – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

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 15 January 2018 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 16 May 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 (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) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Web Developer (ANZSCO 261212).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination application by City Fringe Properties Pty Ltd (the nominator), being the nomination referred to in cl.186.223(1), was refused by a delegate for the Minister for Home Affairs on 30 November 2017 and as such there was no approved nomination.

6. By letter dated 11 May 2020, the Tribunal wrote to the applicants in accordance with the requirements of s.359A of the Act, inviting the applicants to comment or respond to information that the Tribunal considered, subject to any comments or response, would be the reason or part of the reason for affirming the decision under review.  In its letter, the Tribunal outlined the particulars of the information, the relevance of the information and the consequences of the Tribunal relying on the information, as follows:

   ·On 29 April 2020, the Tribunal affirmed the decision to refuse the nomination application made by City Fringe Properties Pty Ltd (the nominator) in relation to the applicant and this means that the nomination has not been approved as required by cl.186.223(2) of Schedule 2 to the Regulations.

7. In its letter the Tribunal stated that this information is relevant to the review because it is a requirement for the grant of the applicant’s Subclass 186 visa that the related nomination application has been approved.  The Tribunal stated further that if the Tribunal relies on this information in making its decision it may find that the applicant is not the subject of a current approved nomination and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

8. The applicants responded by letter dated 18 May 2020.

9. The applicants appeared before the Tribunal on 5 June 2020 to give evidence and present arguments.

10. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. The applicants consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent, Mr David Chua.  The representative attended the hearing.

12. Post hearing submissions were received from the applicants on 22 June 2020, regarding referral of the matter for Ministerial Intervention under s.351 of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the related nomination has been approved.

15. At the hearing of this matter, the applicant gave detailed oral evidence about his role with the nominating business and the circumstances that resulted in his visa application being refused.  The applicant stated that he understood that the nomination application had been refused and that the Tribunal had affirmed this decision on review and that this meant that he did not meet a requirement for the grant of the Subclass 186 visa.  The applicant stated that he was concerned that the Tribunal had affirmed the nomination on a different basis than the delegate at first instance and that the nominator was not given an opportunity to address those issues at the hearing.  The applicant stated that the Tribunal should have restricted its consideration to the matters on review.

16. The applicant stated that he first arrived in Australia in June 2006 on a Student visa and obtained a Bachelor of Information Technology before applying for a Subclass 457 visa.  The applicant stated that he had been working for the same company since 2015 and they would like him to continue to work for them.  He stated that he got married in 2009 and he and his wife had their first child in 2011 and then a second child in 2019.  He stated that he has always worked very hard, was raising a family and contributing to the local community.  He stated that he loved living in Australia and wished to make it their permanent home for himself and his family. He stated that he was worried for his children, noting that his eldest child spoke English and had never visited his home country in Vietnam. He stated that all his sons’ friends were here, he was well integrated into the Australian lifestyle and considered Australia his home.

17. At the hearing, the Tribunal stated that while it would not be discussing the related nomination application, when considering such nomination applications the Tribunal must be satisfied that the nominator meets all the applicable criteria relevant to the nomination under r.5.19 of the Regulations, not just the criterion on which the delegate based their decision. The Tribunal noted that, as such, it was open to the Tribunal to make a decision based on different criteria. 

18. At the hearing, the Tribunal reiterated that the determinative issue on review in the applicant’s case is whether the nomination application had been approved.  The Tribunal noted that as the decision relating to the nomination application had been affirmed on the review, it appeared that the applicant could not meet the requirements of cl.186.223(2) as there was no approved nomination. The Tribunal reiterated that this would be a reason, or part of the reason for affirming the decision on review in relation to the applicant.  The Tribunal also stated that this would be the reason or part of the reason for affirming the decisions in relation to the secondary applicants as their claims as members of the family unit of the first named applicant were reliant on the approval of the first named applicant’s Subclass 186 visa under cl.186.311. The Tribunal stated that it understood the circumstances were difficult but noted that it did not have discretion in relation to the requirement that the related nomination application must have been approved.

19. The Tribunal invited the applicant to make further submissions in relation to the determinative issue on review before the Tribunal.  The applicant stated that he wished to keep working and contributing to Australian society and is hoping there is some pathway for him and his family to do so.  The applicant stated that he did not have anything further to add other than that he understood that his visa application can’t be approved if the nomination hasn’t been approved and that the nominator intended to appeal the Tribunal’s decision to the Federal Circuit Court.

    Nomination of a position

20. 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.

21. 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 r.1.13A and r.1.13B of the Regulations); 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.

22. On 29 April 2020 the Tribunal affirmed the delegate’s decision to refuse the nomination application lodged by City Fringe Properties Pty Ltd (the nominator) in relation to the applicant, being the nomination application in respect of which the applicant made his declarations under cl.186.223(1).  Accordingly, at the time of this decision, the applicant is not the subject of an approved nomination as required under cl.186.223(2).

23. Therefore, cl.186.223 is not met.

24. 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.

25. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.186.311.

    Ministerial Intervention

26. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister 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 consistent with s.351 of the Act.

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

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

    ·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 (emphasis added).

29. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

30. The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.

31. Following the hearing, the applicants have provided a significant volume of information to support a request for Ministerial Intervention, which the Tribunal has considered. Having considered the supporting information, the Tribunal is of the view that the applicants’ circumstances warrant a referral to the Minister.

32. The applicant has two children who were both born in Australia, the eldest, whom is the third named applicant, was born in October 2011 (nearing 9 years of age) and the youngest was born in 2019.  The applicant has provided supporting evidence relating to the third named applicant, including kindergarten and school records, evidence of extracurricular activities and other supporting information which demonstrate he is thriving and settled in the Australian community. The third named applicant has written a letter describing his experiences at school and in the community and his friendships and outlining his desire to remain in Australia.  However, the Tribunal notes that none of the applicant’s family members are Australian citizens or permanent residents. The Tribunal further notes that while the applicants have provided letters of support from Australian citizens and permanent residents highlighting their character, involvement and contribution to the local community, it does not appear that these relationships are of the nature that would warrant intervention on the basis that there are strong compassionate circumstances that if not recognised would result in an ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit. Having considered the information before it, the Tribunal does not consider that the applicant meets the guidelines relating to strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit that would warrant intervention.

33. However, the Tribunal considers that the application of the legislation would lead to unfair or unreasonable results in this particular case, having regard to the basis of refusal of the nomination application on review and the information before it regarding the applicant’s period of employment with the nominating business and the ongoing nature of that employment. The applicant has been in Australia since 2006 and remains in gainful full-time employment with the nominating business where he has worked since April 2015. The applicant’s employer has provided a letter of support signed by Director Adam Rossi stating that the applicant is a valued, respected and important member of the team and confirming that the nominated position is available to the applicant for at least the next two years. The applicant has advised that the applicant’s employer has appealed the Tribunal’s decision affirming the nomination application to the Federal Circuit Court.  The applicant has also provided a number of work-related references attesting to his skills as a web developer and a specialist in information technology.

34. The applicant has noted his commitment to Australia and his enduring desire for him and his family to obtain permanent residency and continue to contribute to Australian society.  The applicant has noted the hardship experienced by him and his family as a consequence of the visa process, including depression and anxiety and two miscarriages experienced by his wife. The applicant has noted the costs expended by the applicant to date in pursuit of the visa and the pipeline of envisaged expenditure. The applicant has made submissions regarding the refusal of the visa leading to an unfair or unreasonable result in these circumstances.

35. The secondary applicant has provided evidence of her employment as a part-time cleaner with two companies: BIC Cleaning Services Pty Ltd since 23 May 2013 and Consolidated Property Services (Australia) Pty Ltd since 6 June 2013, working 20 hours per week for each business, who have both written references in support. The second named applicant is currently on maternity leave following the birth of her second child and is due to return to work on 20 September 2020.  The second named applicant has provided details regarding the negative impact of the visa process on her mental and physical health. The second named applicant has provided details and supporting references about community and charitable activities undertaken by herself and her husband. 

36. Additionally, the applicants have provided a number of letters of support from Australian citizens and permanent residents which highlight their character and contribution to the general community. This includes details of community and charitable activities for those less privileged and support for neighbours during the COVID-19 pandemic.

37. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Phoebe Dunn
    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.