Wedingco (Migration)

[2023] AATA 3137

Wedingco (Migration) [2023] AATA 3137 (5 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junjun Wedingco
Mrs Ma Judybhel Ybanez
Miss Maisie Jai Wedingco

CASE NUMBER:  2306911

HOME AFFAIRS REFERENCE(S):          BCC2019/273520

MEMBER:Andrew McLean Williams

DATE:5 September 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the Applicants Employer Nomination (Permanent) (Class EN) visas, yet recommends that the Applicants circumstances be considered for Ministerial intervention .

Statement made on 05 September 2023 at 3:14pm

CATCHWORDS  
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chef – skills assessment – interregnum between the expiration of the currency of the prior skills assessment and the issuing of the current skills assessment – “triumph of form over substance” – Ministerial intervention requested – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.234, 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 2 May 2023 thereby refusing to grant the Applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicants applied for the visas on 30 January 2019. At the time of application, Class EN contained only 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 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one Applicant. Other members of the same family unit, if any, who are also 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 Direct Entry stream to work in an employer nominated position as a chef.

5. The Delegate refused to grant the visas because the Applicant did not meet cl 186.234 of Schedule 2 to the Regulations, because at the date of applying for the visa (30 January 2019) the Applicant Mr Junjun Wedingco had provided a skills assessment dated 5 June 2015 which had only remained valid until 5 June 2018, meaning that the skills assessment had expired by the date of application for the visa.

6. On 3 April 2023 Mr Wedingco was afforded a period of 28 days within which to provide evidence of his having had a ‘valid skills’ assessment. On 19 April 2023 Mr Wedingco contacted the Department and explained that he had not realised that the skills assessment that had been submitted by him in support of his visa application on 30 January 2019 had expired. On 24 April 2019 a valid skills assessment (which Mr Weddingco had even applied for before the expiration of the skills assessment that had been submitted in support of the visa application) was issued, indicating that Mr Wedingco does have all the necessary vocational skills as a chef as are required for his nominated position. 

7. Unfortunately, on 2 May 2023, the Delegate determined that Mr Wedingco did not satisfy the requirements of Clause 186.234 because clause 186.234(1) requires that the valid skills assessment now referred to in clause 186.234(2) be available ‘…at the time of application’.

8. Mr Wedingco has always been a qualified chef by occupation, and had a valid skills assessment both prior to the date of application for the visa, and also again on a date very shortly after the date of his visa application, but here suffers from the technical misfortune of his having not been the holder of a valid skills assessment in the interregnum between the expiration of the currency of the prior skills assessment on 5 June 2018, and the issuing of the current skills assessment on 24 April 2019. Unfortunately, the visa application was one submitted during that interregnum, such that - in what may be seen as a “triumph of form over substance” Mr Wedingco cannot meet the requirements specified in clause 186.234(1)

9. The Applicants appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The unfortunate circumstances now confronting the crestfallen Applicants were explained by the Tribunal, whereupon Mr Wedingco explained that because of his age it was now very unlikely that he would become eligible for another visa under the employer nomination scheme. In these circumstances the Applicants requested that their case now be recommended by the Tribunal for Ministerial intervention. In all of the circumstances of this case the Tribunal supports that request, and now recommends that the Minister consider intervening.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet recommends that the matter be considered as warranting Ministerial intervention.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the primary Applicant satisfies the requirements of clause 186.234, which is a ‘time of application’ criterion.

12. For reasons already elaborated, Mr Wedingco did not meet this criteria as at the date of applying for the visa (30 January 2019), however it is trite to observe that he did satisfy this criteria both before applying for the visa, and then again very shortly afterwards, on 24 April 2019, and that the Applicant had applied for that skills assessment even before the expiration of the former skills assessment.

13. Mr and Mrs Wedingco have now been contributing members of the Australian community for more than eight years.  Each are gainfully employed, and each contribute to the Australian economy. 

14. Mr Wedingco is employed as the head chef of a Teppenyaki restaurant on the Sunshine Coast, and the continued operation of that business is now dependent on Mr Wedingco as the integral employee. Mr Wedingco is also currently supervising the training of an apprentice chef in his kitchen, and the trade training of that apprentice may be compromised, in the event that Mr Wedingco is now required to return to the Philippines.  The Applicant’s wife, Ms Ma Judybhel Ybanez works as a night shift Gaming Room and Bar Supervisor between 6pm and 4am, before then conducting her own cleaning business during the mornings, as well.  The Wedingco family are Catholics and are members of the Maroochydore Catholic Church congregation, and are active in the Sunshine Coast community.

15. Such is the period of time that the Applicant and his wife have now lived in Australia and thus away from the Philippines that the prospect of their now being required to return to the Philippines is a matter that fills them with considerable anxiety regarding their economic future.  Mr and Mrs Wedingco (Ms Ma Judybhel Ybanez) also have a daughter, Miss Maisie Jai Wedingco, who is currently aged 7, who is in grade two at school.  Maisie was born in Australia, and has only known life in this country, and only speaks English at home.  In the Tribunal’s assessment the best interests of Maisie is an important consideration and is a matter that is now best served by this family being allowed to remain in this country.    

16. Ms Ma Judybhel Ybanez’s mother, (recently deceased), was also an Australian citizen, resident in this country.  The Applicants have only limited other family still remaining in the Philippines, and stronger social and community connections in Australia than are those connections still remaining in the Philippines.     

17. The Applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review can only be affirmed by this Tribunal.

18. Because Mr Junjun Wedingco does not meet the requirements of clause 186.234, Ms Judybhel Ybanez and Miss Maisie Jai Wedingco – as family members of the primary applicant - are now wholly unable to meet the requirements of clause 186.311.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas, yet recommends that the circumstances of the Applicants now be considered for Ministerial intervention.

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    .

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.