1502444 (Migration)

[2016] AATA 3009

1502444 (Migration) [2016] AATA 3009 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Edna Ngozi Umunakwe
Mr Lazarus Onyinyechi Umunakwe
Miss Queen Chinwendu Umunakwe
Master Emmanuel Chinoso Umunakwe
Miss Isiguzo Chinasa Udodiri Umunakwe
Mr Chinoso Okere Umunakwe

CASE NUMBER:  1502444

DIBP REFERENCE(S):  BCC2014/491019

MEMBER:Denise Connolly

DATE:4 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2016 at 10:09am

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 12 February 2015 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 for the visas on 3 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 Direct Entry stream, to work in the nominated position of Child Care Worker. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because there was no evidence that an assessing authority had assessed her skills as suitable for the occupation, and the delegate found she was not in a class of exempt persons specified by the Minister in an instrument in writing for that subclause.

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

7. The applicants were represented in relation to the review by Mr Peter Kolya who described himself in written submissions to the Tribunal as an Attorney in Fact. At the time of the hearing the MARA records indicated that Mr Kolya’s registration as a migration agent had lapsed. Mr Kolya told the Tribunal at the hearing that he had received correspondence from MARA indicating that he is deemed to be registered because of ongoing litigation. However he was unable to provide that correspondence to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills assessment and prior employment

9. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

10. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.  

11. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

12. At the time the visa application was made the applicant acknowledged that she did not have a suitable skills assessment from the relevant assessing authority.

13. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate set out the requirements of cl.186.234 and the text of IMMI 12/060. She noted that the applicant was given an opportunity to provide the evidence that she met those requirements. However the applicant did not respond. The delegate found the applicant had not provided a suitable skills assessment and there was no evidence that she was an exempt person as described in IMMI 12/060. She therefore did not meet cl.186.234.

14. Prior to the hearing the applicant’s representative provided to the Tribunal various documents and a written submission. The documents include AFP and police clearances, a letter from the applicant’s current employer, Brindabella Christian College, stating she is hard working and that they support and sponsor the applicant. In a written submission to the Tribunal Mr Kolya notes the support the applicant has from her employer, who believes she has the skills to perform the duties and meet the employer’s needs. He refers to a letter from a Church in Nigeria stating she has been a religious worker and possesses skills, and has past experience as a Sunday School teacher, an evangelism coordinator and youth leader. He states she has obtained a Certificate III in Child Care Services. He states the delegate put too much weight on the policy guidelines and IMMI 12/060 and failed to take into account the applicant’s competency and the exceptional circumstances in this case. He believes her skills and experience, and the needs of her employer are exceptional circumstances that warrant the Tribunal exercising its discretion.

15. At the hearing the Tribunal explained to the applicants the requirements of cl.186.234 and IMMI 12/060. It explained that it does not have any discretion to waive the requirements of those provisions. The applicants unfortunately appeared to have been persuaded by Mr Kolya that there is discretion to waive the skills assessment requirements where there are exceptional circumstances. The applicant had prepared a written submission that she wished to read to the Tribunal about why she should not have to meet the skills assessment requirement. The second named applicant also wished to discuss with the Tribunal the employer’s needs, their circumstances and why the applicant was sufficiently skilled to meet the employer’s needs. The Tribunal explained that there was no utility in making long submissions about exceptional circumstances, aimed at persuading the Tribunal to exercise a discretion to waive the requirements of cl.186.234 as there is no such discretion. The Tribunal is concerned that Mr Kolya has given the applicants incorrect advice on this issue and gave them the impression that the Tribunal has discretion in these matters.

16. The Tribunal asked the applicant if she has a suitable skills assessment. She acknowledged that she does not have a skills assessment and did not have one at the time of the visa application. She said however that she has now started a Diploma course and provided evidence of this. She asserted however that she has the skills to perform the job. The Tribunal explained that this is not sufficient evidence for it to find she has a suitable skills assessment. The Tribunal finds that the applicant’s skills have not been assessed as suitable for the occupation by a specified assessing authority. She therefore does not meet cl.186.234(2).

17. The Tribunal discussed with the applicant the exemptions set out in IMMI 12/060. She acknowledged that she does not meet any of the exemptions described in that instrument. She is not a Minister of Religion. She is not a researcher, a scientist or a technical specialist, or an academic. She therefore is not a person who meets the exemption set out for Class 1. There is no evidence that the applicant’s nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate. She therefore is not an exempt person as described in Class 2 of the instrument. The applicant is also not the holder of a subclass 444 or 461 visa and therefore is not an exempt person as described in Class 3 of the instrument. As the applicant does not meet the descriptions of any of the classes of persons specified in the instrument she therefore does not meet cl.186.234(3).

18. The Tribunal accepts that the applicant is valued and sponsored by her employer. However this is not sufficient to meet the legislative requirements relating to skills assessment. As the applicant does not meet cl.186.234(2) or cl.186.234(3), she therefore does not meet cl.186.234(1) and cl.186.234 of Schedule 2 to the Regulations.

19. 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 must be affirmed.

    DECISION

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

    Denise Connolly
    Member