1415599 (Migration)

[2015] AATA 3846

1415599 (Migration) [2015] AATA 3846 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dhansukh Premji Jeshani
Mrs Jyoti Bhimji Ladhani
Miss Tanisha Dhansukh Jeshani

CASE NUMBER:  1415599

DIBP REFERENCE(S):  BCC2014/682965

MEMBER:Dione Dimitriadis

DATE:7 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2015 at 2:01pm

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 on 8 September 2014 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 to the Department of Immigration and Border Protection (the Department) for the visas on 10 March 2014. 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 the Temporary Residence Transition stream, to work in the nominated position of Welder (First Class). 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.186.223 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 10 November 2015 to give evidence and present arguments.  

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant was nominated by Hi Switch Sheetmetal Pty Ltd (the nominating company) in the position of Welder (First Class). 

10. The nominating company applied for approval of the nomination in the Temporary Residence Transition stream set out in r.5.19(3). However, the Tribunal found on 17 November 2015 that the nominating company did not satisfy the requirements of r.5.19(3)(a) because the application for approval of the nomination did not identify a personal who holds a Subclass 457 visa.  The Tribunal found that the nominating company did not meet the requirements for approval of the nomination under the Temporary Residence Transition nomination stream.

11. The Tribunal also considered whether the nominating company met the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4). The Tribunal was not satisfied that the nominating company met r.5.19(4)(h) and the Tribunal therefore found that the nominating company did not meet the requirements of r.5.19(4) and did not satisfy the criteria in the Direct Entry nomination stream.

12. The Tribunal informed the applicant at the hearing that it would find that the nominating company did not meet the requirements for approval in the Temporary Residence Transition stream and it would consider whether the nominating company met the requirements for approval of the nomination in the Direct Entry stream.

13. On 20 November 2015 the Tribunal wrote to the applicants pursuant to s.359A of the Act and informed them that it is required by the Act to invite them to comment on or respond to information which the Tribunal considers would, subject to their comments or response, be the reason, or a part of the reason for affirming the decisions under review. The Tribunal informed the applicants that the particulars of information are that the Tribunal decided on 17 November 2015 to affirm the decision of the delegate of the Minister for Immigration and Border Protection to refuse the nomination in relation to the applicant by the nominating employer and that the Tribunal made a decision that the nomination did not meet the requirements for approval under the Temporary Residence Transition stream and the Direct Entry stream.

14. The Tribunal informed the applicants that this information is relevant to the review because cl.186.223(2) in the Temporary Residence Transition stream and cl.186.233(3) in the Direct Entry stream require that the Minister has approved the nomination. The Tribunal informed the applicants that If the Tribunal finds that the nomination has not been approved, it will find that the applicant does not satisfy cl.186.223(2) in the Temporary Residence Transition stream and cl.186.233(3) in the Direct Entry stream. The Tribunal informed the applicants that it will then find that the applicant does not satisfy the requirements for the grant of the visa.  

15. On 1 December 2015 the Tribunal received a letter from the representative who indicated that the applicant requested that the Tribunal consider this case outside the Regulations. The representative requested that the matter be referred to the Minister because of compassionate circumstances affecting the applicant’s family members and the applicant’s apparent value to his current employer. The representative stated that the employer is also willing to support the applicant for a Subclass 457 visa.

16. The Tribunal is bound by the law and has to apply the relevant law. The Tribunal has to consider whether the applicant meets the Regulations for the grant of the visa.

17. The issue in the present case is whether the applicant satisfies cl.186.233 and cl.186.232

    Nomination of a position

18. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

19. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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.

20. The Tribunal made a decision on 17 November 2015 that the nominating company did not satisfy r.5.19(3)(a). Therefore the nominating company did not satisfy the requirements for approval of a nomination in the Temporary Residence Transition stream.

21. The Tribunal finds that the nomination in the Temporary Residence Transition stream has not been approved. The Tribunal finds that the applicant does not meet cl.186.223(2) because the nomination has not been approved.

22. Therefore, cl.186.223 is not met.

    Nomination of a position

23. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

24. In addition, this criterion also requires that:

    ·the person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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.

25. The Tribunal made a decision on 17 November 2015 that the nominating company did not satisfy r.5.19(4)(h). Therefore the nominating company did not satisfy the requirements for approval of a nomination in the Direct Entry stream.

26. The Tribunal finds that the nomination in the Direct Entry stream has not been approved. The Tribunal finds that the applicant does not meet cl.186.233(3) because the nomination has not been approved.

27. Therefore, cl.186.233 is not met.

28. The Tribunal is satisfied that the applicant does not meet the requirements for a Subclass 186 visa in the Temporary Residence Transition stream and the Direct Entry stream. As well, the applicant’s employer did not nominate the position to which this visa application relates under a labour agreement. Therefore an essential criterion under the Agreement stream cannot be satisfied. 

29. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream, the Direct Entry stream or the Agreement stream have not been met, the decision under review must be affirmed.

30. The second and third named applicants do not satisfy cl.186.311 because they are not members of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

31. 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.

32. The applicant has requested that, because of compassionate circumstances affecting the applicant’s family members and the applicant’s apparent value to his current employer, the Tribunal refer this case to the Minister. The Tribunal acknowledges that the nominating employer considers that the applicant is an asset to the nominating employer and is willing to support the applicant for a Subclass 457 visa.

33. 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) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Dione Dimitriadis

    
    

    Member