Ward (Migration)

[2018] AATA 2630

Ward (Migration) [2018] AATA 2630 (20 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Patrick Terence Ward
Mrs Beryl Danielle Ward

CASE NUMBER:  1706277

DIBP REFERENCE(S):  BCC2016/2705099

MEMBER:Karen Synon

DATE:20 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 June 2018 at 9:32am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Schemed – Nominated position – Customer Service Manager – First named applicant over 50 years of age – Applicant not in a class of exempt persons – Ministerial intervention requested – Unique circumstances – Unstable security situation in South Africa – Best interest of grandchildren for grandparents to stay in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cls 186.221, 186.232, 186.314

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 17 March 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 16 August 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 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 ‘Customer Service Manager’.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

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 aged over 50 at the time of application and was not in a class of persons exempted from having to satisfy the age criteria.

6. The matter was first constituted to Member Buljan who heard the matter on 11 September 2017.  As Member Buljan is no longer able to determine this matter it has been constituted to another Member.

7. The applicants appeared before the Tribunal on 11 September 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Robert Ashworth.  The hearing was conducted by telephone.

8. The applicants were represented in relation to the review by their registered migration agent.  The representative did not attend the hearing.

9. The presently constituted Tribunal (‘the Tribunal’) has listened to the recording of the hearing held on 11 September 2017 and considered all the written evidence before it.  It does not consider a further hearing to be necessary and, on the basis of all the oral and written evidence before it, has proceeded to decision.

10. The Tribunal notes that the previous Member indicated that in moving to decision, she would take into consideration surgery that the second named applicant was to undergo on 23 October 2017 and consequently appears to have delayed finalising the decision for this reason.  However, as more than nine months has now passed since the hearing, and although this surgery appears to have been rescheduled for 30 July 2018 (with no explanation provided for the delay), the Tribunal has determined to proceed to decision noting that any submissions about the second named applicant’s inability to travel, should the surgery procced as rescheduled, can be made directly to the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is cl.186.221.

    Age requirements

13. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.221.

14. In the present case the visa application records (and the applicant confirmed at the hearing) that he was born on 23 January 1943 making him aged 73 years at the time of application in the Temporary Resident Transition Scheme on 16 August 2016.  He therefore does not satisfy cl.186.221(a).

15. The legislative instrument IMMI 15/083 specifies two classes of person (Class 5 and Class 6) who are exempt from having to meet the age requirement.  These are:

    ·Class 5: 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; or

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

    i. University Lecturer (ANZSCO 242111); or

    ii. Faculty Head (ANZSCO 134411

    ·Class 6: Persons:

    a) who have been working for their nominating employer as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa; and whose annual earning for each year in the four year period was at least equivalent to the Fair Work High Income Threshold; or

    b) Medical practitioners (ANZSCO MINOR GROUP 253):

    i. who have been working in their nominated occupation as the holder of a Subclass 457 – Temporary Work (Skilled) visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa;

    ii. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and

    iii. whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7); or

    c) Medical practitioners (ANZSCO MINOR GROUP 253):

    i. who have been working in their nominated occupation as the holder of a Subclass 422 – Medical Practitioner visa before becoming a holder of a Subclass 457 – Temporary Work (Skilled) visa at least two years in the four years immediately before applying for their Subclass 186 or Subclass 187 visa;

    ii. this employment was located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7), for at least two of these years; and

    iii. whose nominated position is located in regional Australia, as prescribed in an instrument in writing made under subregulation 5.19(7).

16. The previously constituted Tribunal Member discussed these two exempt classes of persons with the applicant at the hearing.  The applicant said he was not a researcher, scientist or technical specialist nominated by an Australian scientific government agency or a University Lecturer or Faculty Head to be employed by an Australian University in Australia.  The applicant is therefore not part of the exempt persons specified in Class 5.  The applicant has not been working for his nominating employer as the holder of a Subclass 457 for at least four years immediately before applying for this visa whose earnings were at least equivalent to the Fair Work High Income Threshold.[1]  Nor is he a Medical Practitioner.  The applicant is therefore not a part of the exempt persons specified in Class 6.

    [1] Which was $138,900 from 1 July 2016.

17. As the applicant is not in a class of exempt persons specified in the relevant Legislative Instrument he does not satisfy cl.186.221(b).

18. As the applicant does not satisfy either cl.186.221(a) or (b), cl.186.211 is not met.

19. 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.

20. In relation to the second named applicant, the Tribunal notes that she applied on the basis of being a member of the first named applicant's family unit.  As the Tribunal has found that the first named applicant does not meet cl.186.232, the secondary applicant is also unable to meet the requirements of 186.311(a), which requires that she be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    Request for Referral for Ministerial Intervention

21. In a submission received before the hearing the Tribunal was asked to consider referring this case for Ministerial Intervention.  Additional evidence was given by the applicants and their son-in-law at the hearing and further supporting documents were provided following the hearing.  In summary the relevant information is:

    ·     A submission from the applicants’ representative which conceded that the applicant does not meet the age requirements for the grant of the 186 visa and requested that the Tribunal refer the matter to the Minister to intervene on public interest grounds and grant the applicants Visitor (subclass 600) visas valid for six months with no work restriction.  This would allow them to apply for an onshore Contributory Parent (subclass 143) visas without being required to pass the balance of family test.  This is based on the applicant’s work with his son-in-law to develop franchises of Gloria Jeans Coffee in South Africa between 2006 and 2012 as together they established 11 profitable stores.  The applicants’ son-in-law moved back to Australia in 2011 after his family were the victims of a break-in at their property in South Africa.  The applicants came to visit Australia as holders of visitor visas to assist their daughter and her husband with their children.  Upon returning to South Africa the applicant was granted a Temporary Work (Skilled) (subclass 457) visa under the sponsorship of the coffee shop owned by his son-in-law and valid for a period of four years until September 2016.  The secondary applicant was included as a dependent.  The applicants sold all their assets in South Africa to prepare for the move to be with their family.  It was further contended that when the applicant’s son-in-law spoke with a department officer he was advised to pursue the nomination of the applicant for a 186 visa however this was refused as he did not meet me at the age criteria.  The fact that this is a legal requirement containing no waiver provision was not advised to the applicant or his son-in-law by the department officer at the time they applied for the visa.  The applicants provide critical support to the daughter and son-in-law with their business and their family obligations to their four children.  They cannot go offshore to lodge a further 457 visa because the nominated occupation of Customer Service Manager is now subject to a caveat which prevents businesses with an annual turnover of less than AUD $1,000,000 sponsoring an employee in that occupation.  It is also an occupation on the short-term skilled occupation list which can only be granted for a maximum of two years with one extension. It was submitted that the applicant’s circumstances are unique and exceptional on the basis that:

    §Their daughter and son-in-law are very reliant on and close to the applicants who are essential to the ongoing success of their regional business as well as assisting them to care for their four children aged between three and 12 who are Australian citizens.

    §The applicants’ daughter and son-in-law home school their children and are only able to do this because of the support they have from the applicants.  The children benefit from having their grandparents on the property and love spending time with them.  The applicants also take the children to various sporting and cultural activities which would otherwise be impossible given their seven-day week working commitments.

    §Should the applicants have to return to South Africa Robert Ashworth states he would strongly consider returning to South Africa and setting up a business there which would be destabilising for their children and would require the sale of the business they spent the last years of their life building.  This is despite Australian government travel advice for South Africa suggesting that people exercise a high degree of caution due to the high level of serious crime and it was because of the highly unstable security situation that Robert and Andrea Ashworth moved their family back to Australia in 2011.  It was noted that returning to South Africa would adversely impact on their children in terms of the unstable security situation and grossly inadequate access to education there.

    §It was submitted that the applicants would therefore be subjected to irreversible harm if they are not able to continue to reside in Australia and that Robert and Andrea Ashworth would be unable to continue the operation of the business in addition to their responsibilities to care for the young children who are all home-schooled.

    §It was contended that the best interests of the grandchildren is that the applicants be permitted to remain in Australia and be continually engaged in their care and that they would experience great instability if they are unable to continue to be cared for by their grandparents or if their grandparents returned to South Africa and if Robert and Andrea Ashworth sold their home and business and also moved South Africa.

    §Andrea Ashworth is the applicants’ youngest child and another sister has plans to move her family to Australia or New Zealand.  The applicants have an older brother who has no contact with his parents and two other siblings (Warren and Melanie) who are financially supported by their parents and are in no position to provide any support to them.

    §Ms Cathy McGowan, MP supports the applicants desire to stay in Australia and  notes they have become part of the local community;

    §The applicant brings a wealth of experience to Australia having managed a successful Gloria Jeans Coffee Shop in South Africa between 2006 and 2012 and prior to his involvement with this franchise, was the accountant and financial director of two shoe companies for 25 years which, at the peak of business, produced an average of 9,000 pairs of ladies fashion shoes a day and employed 730 people.  The applicant has worked for the business in Australia since October 2012 and has assisted to build the flourishing business in the regional centre of Wangaratta.  The applicant is an astute and seasoned business person whose skills are much-needed and it would be difficult to attract and retain qualified staff with similar experience.  The applicants continued stay is essential to his son-in-law who seeks to expand and grow his business into the Australian community, specifically the regional community of Wangaratta who benefit from the services and training he provides the business.

    §The applicant, his wife and their family’s well-being and happiness are at substantial risk of harm and this is a case truly deserving of the Minister’s intervention.

    ·     Evidence that the applicants’ daughter and her family have been granted work visas (of 30 months’ duration) to work in New Zealand;

    ·     Evidence that the second named applicant is scheduled to have hip surgery on 30 July 2018.  A medical letter from Mr Richard Kjar supporting this was provided;

    ·     Letters of support from: Clayton Henderson; Dr Graeme Blanch; Kate Oates; Gavin Drage; Patsy Haynes; Brian and Rhonda Hawkins; Jenny Peake; Lina Scalzo; Trent Jones, Andrea Canning; Steve Neilly; Rohan Latimer; Leonard Holden; H Hope; Helene Gallo; Heath Lloyd; Toni and Ashley McDonald; Patricia Nolan; Leanne Condron; Trudy Hennessy; Ian Douglas; Peter Mahoney; Gabby Simmonds; Terry and Susan Rumble; Ben Kneebone; Stephen Rees; Barry Oliver; Diane Canny; Innocenza Morehouse; Jeremy Reed, Gwendoline Nash; David Salmon; Betty Harbottle; William Woodcock; Helen and Graeme Bell; Kendall Beattie and Shane and Bernie Seymour; who all met and commend the applicant as customers and/or local business neighbours of the ‘Where’s my Coffee’ café;

    ·     A letter of support from Robert Steel who supports the applicants living in Wangaratta;

    ·     Letters of support from: Lorraine and Tom Curran; Dannile and Kelly Smith; and Andrew Cole whose children were (or are) employed by ‘Where’s is my Coffee’;

    ·     Letters of support from: Jarid Seymour; Kate Whitten; and Juliette Howard, casual employees of ‘Where’s my Coffee’ and Madison Smith a full time employee;

    ·     A letter of support from Paul Korotkov, District Sales Manager of Coca Cola Amatil;

    ·     Letters of support from: Elizabeth Eilis; Laurn Andrews; and Grace Mason and Toni and Brandan Crockett, family friends;

    ·     Personal letters of support from: Karyn Holwell; Judi Walker; Ken Morehouse; Faye Lackner; Robyn and Tony Frezzini; Wilma Saundes; Cory Saunders; Robert and Katrina McGann; Dr Lynette Squires; Georgette van Stekelenburg; Judi Walker; Trevor Logan; Bill Gerritsen; Nathan Mullane; Merrilyn Dews; Kerri Fisher; Garard Verbeek; Jason Oats; John Joyce; Peter Jordan, Penny Callanan, Ash Allan, Neil Gale; Tim Ellis; Gabrielle Anne Fife; and Louis Fife;

    ·     Customer reviews (including photos) of the cafe;

    ·     A letter of support from Martin Hogan, the Director of Hoan Health Consulting, who writes of the applicants’ support to their daughter and son-in-law in running their business, their pivotal role and that the business has supported fund-raising for local charity organisations and schools and has been a regular employer of young people.

    ·     A letter from Craig Simpson, another son-in-law of the applicants who writes that he and his family reside in South Africa but are in the process of applying to migrate to New Zealand and, if they go, there will be no support structure for the applicants in South Africa.

    ·     A copy of the Robert Ashworth’s ‘Last Will and Testament’ who relevantly names, among others, the applicants as executors.

    ·     The cafe currently employs 7 local students and has, over the years, employed approximately 20 young people on a casual basis.

    ·     Various financial statements relating to the cafe operations;

    ·     Various copies of training contracts for the cafe to deliver training in the Certificate III in Retail to four people for a payment of what appears to be $7,722;

    ·     A copy of an ‘Audible Training Plan’ made between ‘Apprenticeships Matter’ and ‘Where is my Coffee’ in respect of four people;

    ·     A letter from Robert Ashworth (much of the content of which was included in the representative’s submission) in which he details the business venture he undertook with the applicant in South Africa, the history of the applicants’ involvement with both the business and their family in Australia, and highlighting the important role both applicants play in supporting them;

    ·     The applicant’s son- in law, Robert Ashworth also gave oral evidence that he sought advice directly from the department about a further visa for his parents-in-law and it was suggested by a department officer that they consider the 816 visa knowing the applicant’s age.  He said “they had nothing to lose” but after the 186 was refused the 457 program had “been pulled by the government”.

    ·     A letter of support from Cathy McGowan, MP;

    ·     The applicant’s résumé ;and

    ·     Information, including a newspaper article, relating to the applicant’s position with the Panama Shoe Group in South Africa.

1. In considering whether it should make a referral that the Minister intervene and exercise his power under s.351 of the Act, the Tribunal has considered the Guidelines in PAM 3 as to the circumstances in which the Minister may exercise this power. In doing so the Tribunal notes it is not bound by department policy.

2. The Tribunal accepts that the applicant and his wife play an important role in supporting their daughter and son-in-law in the running of their business; a local cafe in Wangaratta, and that they also support them with caring for their children, including taking them to sporting and cultural events.  As demonstrated by the many letters of support and condemnation provided, the Tribunal also accepts that the applicant has many supporters and friends in the local community where he is obviously admired and respected.  The cafe, in which he works, employs local young people and appears to be highly regarded.  The Tribunal also notes the applicant’s son-in-law’s evidence that they applied for a 186 visa on the advice of a department officer, even though the applicant was over the age limit at the time of application and that, should the applicants not be permitted to stay in Australia, he may relocate his family back to South Africa despite it being unsafe.

3. However, as explained to the applicants and their son-in-law at the hearing, Ministerial Intervention is exercised in rare cases where there are unique and/or exceptional circumstances and, notwithstanding the obvious value of the applicant and his wife to their daughter and son-in-law’s cafe and in support of their grandchildren, it is not of the view, based on the evidence provided, that the applicant being over 50 years of age at time of application and not in a class of exempt applicants, are unique and/or exceptional circumstances such that the Tribunal should refer this case.  The Tribunal is not of the view, based on the evidence before it, that the applicants would be subjected to irreversible harm if they are not able to continue to reside in Australia and that Robert and Andrea Ashworth would be unable to continue the operation of the business in addition to their responsibilities to care for their children who are home-schooled.  In this respect the Tribunal notes that another of the applicants’ five children and her family will shortly (or have already) relocated to New Zealand on a temporary work visa, that another son lives in Saudi Arabia and that the applicants have two children still living in South Africa, including a son with an ongoing disability.

4. The Tribunal notes that it is open to the applicants to make a direct request for Ministerial Intervention.

   DECISION

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

   Karen Synon
   Member