Fahmi (Migration)

[2022] AATA 856

Fahmi (Migration) [2022] AATA 856 (11 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Ghada Faisal Ali Fahmi

Ms Danah Anas Muthana Al-Doori

CASE NUMBER:  1904518

HOME AFFAIRS REFERENCE(S):          BCC2018/5689459

MEMBER:Jade Murphy

DATE:11 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 11 April 2022 at 4:53pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – network administrator – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – referral for ministerial consideration – strong compassionate circumstances – nominator a school in a multicultural, new migrant community – technology to support learning and development – significant expenditure of public funds – nominee’s skills, experience and leadership – unintentional oversight in labour market testing – member of family unit – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A, 359C(2), 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

CASE

Singh v MIBP [2017] FCAFC  67

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 27 February 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 December 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Network Administrator (ANZSCO 263112).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant’s prospective sponsor did not have an approved nomination in place for her.

4. On 23 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would, subject to the applicant’s comments or response, be the reason or a part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

5. The particulars of the information were that the application for approval of the related nominated position made by South Melbourne Primary School (the nominator), was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal and this means that the nominator’s application for the nominated position has not been approved.

6. It was explained in the letter to the applicants that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

7. The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response, or any request for an extension of time in which to do so, by 6 April 2022, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

8. However, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, or their representative, request an extension of time within the prescribed period in which to do so.

   The Applicant's Loss of the Right to a Hearing

9. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the first named applicant which was the last address for service provided by the applicants in connection with the application for review.

10. However, as noted above, the applicants failed to provide their comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicants and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

11. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

12. For the following reasons, the Tribunal has decided that the decision under review should be affirmed and to refer the matter for Ministerial Intervention on the same basis as the associated employer nomination was referred by decision dated 22 March 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the position to which the application relates is the subject of an approved nomination.

    Requirement for an approved nomination

14. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval and has not ceased.

15. The Tribunal notes the following:

    ·On 10 January 2019, the nomination lodged by South Melbourne Primary School, being the nomination referred to in paragraph 482.212(1), was refused by a delegate for the Minister;

    ·South Melbourne Primary School lodged an application for Tribunal review on 26 January 2019; and

    ·On 22 March 2022, the Tribunal decided to affirm the delegate’s decision to refuse the employer nomination and refer the matter for consideration for Ministerial Intervention.

16. As a result of the above, there is no evidence to demonstrate that there is an approved nomination in place and the Tribunal finds that the nomination requirements in cl.482.212(1) are not met.

17. As the primary applicant does not satisfy the criteria set out in cl.482.212 for the grant of this visa, it follows that the second named applicant does not satisfy the criteria set out in cl.482.312 for the grant of this visa.

18. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    Referral for Ministerial Intervention

19. While the applicant does not satisfy a requirement for the grant of this Subclass 482 visa for the preceding reasons the Tribunal, having regard to the circumstances of the applicant’s case, and having considered the current ministerial guidelines relating to the Minister’s discretionary power under s 351 set out in PAM3 ‘Minister’s guidelines on ministerial powers’ and the Tribunal Guideline – 15 titled ‘Referrals for Ministerial Intervention’, considers there are circumstances warranting further investigation by the Department and, subject to these investigations, may be brought to the Minister’s attention. As set out in 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. 

20. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of their 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 they are requested to do so by the applicant, or any other person, or in any other circumstances.

21. The Minister has issued guidelines to the Tribunal explaining the circumstances in which they may wish to consider exercising their public interest powers under s 351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising their public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. 

    [1] >

    In the opinion of the Tribunal, the circumstances which are unique and exceptional in this case include:

    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 it, 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.

22. At the hearing of the nominator’s associated employer nomination, the representative for the employer Mr Creece, told the Tribunal that the employer is a local school that serves a local community consisting of a high proportion of new migrant families and is a very multicultural community with approximately 58% of students coming from non-English speaking backgrounds. Mr Creece submitted that the school was established to service an inner-city, aspirational, and technologically adept demographic who take education for their children seriously. The school is the first high-rise school for the Victorian government and has since been used as a model for further high-rise schools such as Docklands Primary School and Port Melbourne Secondary School. Noting its unique high-rise facilities and limited physical space, Mr Creece submitted that significant thought and investment went into creating a technological environment to support the learning and development of the students. This involved the investment of hundreds-of-thousands of dollars given the roll out of software, devices and training that went into creating this vital aspect of the curriculum.

23. Mr Creece gave passionate, candid and reliable evidence regarding the vision he had for the applicant to be a leading technological school. This involved asking parents to support the investment in personal devices for all students, training teachers in the use of the software and technology and leading a highly evolved Science, Technology, Engineering, Arts and Mathematics (STEAM) program. Mr Creece stated that he required someone who could fulfil both the technological requirements of establishing and maintaining the school’s computer networks, but also someone who could translate the software and devices into something teachable and could train other educators also. He told the Tribunal that there is both a strong technological knowledge that is required, as well as a teaching aspect.

24. Mr Creece spoke of the difficulty in finding someone with the specialist skillset to fulfill this position. Both Mr Creece and Mr O’Connor gave compelling evidence as to the abilities of the applicant who is not only a member of the Australian Computing Society but also on their education sub-committee to develop policy initiatives. Both gave evidence as to the rare skillset that the applicant carries and identify it as something that is really missing in the community, especially at primary school level. Further, both gave frank and candid evidence regarding the applicant’s personal qualities such as her connection with the significant proportion of Arabic speaking new migrant families that make up the school community. Mr Creece noted the applicant’s ability to provide technological expertise, with a solid educational background and with the personal attributes to be a real leading and connecting force within the local multicultural community. 

25. The Tribunal considers that there are very strong compassionate circumstances that, if not recognised, would undoubtedly result in serious, ongoing, and irreversible harm and continuing hardship to the applicant and its community.  The children and families in the South Melbourne Primary School community comprises of Australians, Australian residents and some have acquired this status recently. In the opinion of the Tribunal, it is essential that they have the same opportunities for learning and development as any other student in Australia. Further, significant public funds have already been spent towards implementing this initiative and it would be a real waste of Australian taxpayer funds to have that now go unused. The Tribunal further accepts that there is a skill shortage of specialist technological experts who also have an educational background. Even fewer still, would be the number of women of colour who are leaders in this field. It is the Tribunal’s view that the applicant is one of these people based on the passionate evidence given by Mr Creece and Mr O’Connor, two highly experienced education professionals. The Tribunal considers it would be a significant loss for the Australian community if the applicant’s specific skill and talent were to be lost.

26. In addition, and as highlighted by both Mr Creece and Mr O’Connor, it was an unintentional oversight that the Labour Market Testing (LMT) condition was not met in the period and manner as specified in the relevant instrument in the associated nomination matter. As education professionals, and not legal experts, the applicant was cognisant of complying with the Department of Education and Training timeframe of advertising a position for at least two weeks but was unaware the Regulations imposed additional requirements. The Tribunal found both men to be excellent communicators and credible witnesses and accepts that they had made every attempt to meet the requirements for the grant of this nomination. Further, the LMT advertisements placed, although not within the required timeframe, do demonstrate the need for this applicant as the only suitably qualified person to apply.

27. The Tribunal acknowledges the employer’s frustration, that it has, after a rigorous and transparent selection process, found a suitable applicant for this highly specialised position but that a technical inability to meet the LMT requirements (and an inability to rectify the initial non-compliance) now renders the significant time and financial investment redundant. In the Tribunal’s view, this is clearly an unintended consequence of the LMT condition that has produced an unfair and unreasonable result to both the nominator and this applicant.

28. The Tribunal considers this is a compelling case which clearly exhibits one or more unique or exceptional circumstances as set out in the Minster’s guidelines.  As such, the Tribunal considers this case should be referred to the Minister for possible consideration of the use of their intervention powers.  The Tribunal notes the applicants can make a request for Ministerial Intervention in their own right.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Jade Murphy
    Member