VUETI (Migration)

[2019] AATA 5903

VUETI (Migration) [2019] AATA 5903 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr SAILASA BOLEKINAIVALU VUETI
Mrs EMA ADIMAISAVU TORA VUETI
Mr TANIELA JOSEPH LASARO VUETI
Mr SAMUELA AISAKE MAIKA VUETI
Miss MIRIAMA MOLLY SENIBULI VUETI

CASE NUMBER:  1703552

HOME AFFAIRS REFERENCE(S):          BCC2016/1124313

MEMBER:Bridget Cullen

DATE:12 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 12 December 2019 at 2:49pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – age requirement – Ministerial intervention requested – Tribunal to refer to department – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cl 186.221

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 and Border Protection on 7 February 2017 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 March 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. 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 Temporary Residence Transition stream, to work in the nominated position of General Practitioner – 253111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.221 of Schedule 2 to the Regulations because he was over 50 years of age at the time of application.

6. The applicants appeared before the Tribunal on 3 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Charles Herr, the Director of the Aspley Super Clinic, which is the employer of the primary applicant, Dr Sailasa Vueti. 

7. The applicants were represented in relation to the review by their registered migration agent, who is also a solicitor, Ms Jennifer Samuta of Samuta McComber Lawyers (MARN 1386572).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the age requirement applicable to his visa application.

   Age requirements

10. 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 13/059: 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.

11. In the present case the applicant was aged 51 years at the time of application. There is no evidence before the Tribunal that the applicant is a person described in Class 5 of 13/059. Therefore, cl.186.221 is not met.

12. 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.

    Ministerial Intervention Request

13. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

14. The applicant, through their representative, provided the following in support of their request for the Tribunal to grant Ministerial Intervention:

    -The applicants have resided in Australia since 2003;

    -They have at all times complied with the conditions applicable to their visas and have always been lawful non-citizens;

    -The primary review applicant is a qualified medical doctor and for the first ten years of his time in Australia worked in regional Australia as a doctor, and continues to be employed as a medical professional;

    -The negligence and conduct of the previous registered Migration Agents resulted in the Sponsor’s failure to produce documents, as well as incorrect advice given about the eligibility requirements (resulting in this visa application being refused).

    -The primary review applicant is currently employed at Aspley Super Clinic, and is heavily relied on by his employer for the continued operation of the business, and whose business interests will be affected.

    -The second named applicant has made significant contributions to Australia;

    -The third named applicant arrived in Australia aged 4 years old, completed their education in Australia, and currently completing a Bachelor Degree at Queensland University of Technology;

    -The fourth named applicant is 15 years old, born in Australia and now an Australian citizen, having acquired Australian citizenship upon turning 10 years old, and is receiving their education in Australia; and

    -The fifth named applicant arrived in Australia as a 7 year old, completed secondary and tertiary education, and currently employed in Australia. Given their age and current circumstances, they would no longer qualify as a dependant on future applications and no longer have access to identifiable pathways for migration to Australia.

15. The submissions continued by stated their circumstances identified above could be described as compassionate because:

    -If not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the family unit, and most significantly to the youngest child of the family (aged 15 years old) who is an Australian citizen;

    -There is exceptional economic and economic benefit that would result from the applicants being permitted to remain in Australia because the primary applicant offers skills in shortage in Australia, and the second named applicant continues making significant contributions to the wider Australian community; and

    -The conduct of the previous appointed migration agents arguably constitute circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation led to unfair or unreasonable results in this case.

16. 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

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

    Bridget Cullen
    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.