1505538 (Migration)

[2015] AATA 3821

1505538 (Migration) [2015] AATA 3821 (2 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao-Hsiang Lu

MRT CASE NUMBER:  1505538

DIBP REFERENCE(S):  CLF2012/70163

TRIBUNAL MEMBER:  Carolyn Wilson

DATE:2 December 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

Statement made on 02 December 2015 at 1:33pm

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 22 April 2015 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 May 2012 on the basis of proposed employment in the position of Cook. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to 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.

4. The delegate refused to grant the visa because the applicant did not meet cl.857.212(6) of Schedule 2 to the Regulations because he had not completed an award course at diploma level or above whilst holding a Student visa.

5. The applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.857.212 of Schedule 2 to the Regulations.  This criterion can be satisfied in various ways, depending on what visa, if any, the applicant held at time of application. A copy of cl.857.212 is attached to this decision.

9. Clause 857.212(1) requires that the applicant meet subclause (3), (5), (6), (7) or (8) if (2) is not applicable.  The Tribunal finds cl.857.212(2) is not applicable to the applicant, because the applicant was the holder of a substantive visa at time of application.  The primary visa applicant must therefore meet the requirements of subclause (3), (5), (6), (7) or (8).

10. The applicant was granted a Subclass 570 Student visa valid from 22 February 2012 to 16 December 2012. He applied for the 857 visa on 31 May 2012.  He therefore did not hold any of the visas required to be held to meets cl.857.212(3), (5), (7) or (8).

11. Subclause 857.212(6) provides that if the applicant held a Student (Temporary) (Class TU) visa, then cl.857.212 will be satisfied if the visa is granted in relation to an award course at diploma level or above completed by the applicant while he is the holder of that visa.  

12. However, the Department’s records indicate the applicant’s Student visa was granted in relation to the course ‘English Language Programs (Beginner to Advanced)’.  This course is not an award course at diploma level or above.  The applicant was not the holder of a Student (Temporary) (Class TU) visa granted in relation to an award course at diploma level or above completed by the applicant while he held that visa.  He does not meet cl.857.212(6)(a).

13. In relation to the alterative requirement in cl.857.2121(6)(b) there is no suggestion that the applicant holds or held a relevant permit issued prior to 1994 and the Tribunal finds that the applicant does not meet c.857.212(6)(b).

14. The Tribunal finds the applicant does not satisfy cl.857.212 of the Regulations, and does not meet an essential criterion for the grant of the visa.   The decision of the delegate must be affirmed.

15. The applicant has only sought to satisfy the criteria for a Subclass 857 visa. No claims have been made in respect of the other visa in the class. As the applicant has not met the criteria for a Subclass 857 visa, the decision under review must be affirmed.

16. The applicant requested the Tribunal refer this matter 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.

17. The representative gave two reasons why the request for Ministerial Intervention, or lifting the s.48 bar, were appropriate in this case. Firstly, he said the delay by the Department, in taking three years to refuse the application when it should have been apparent earlier that the applicant could not meet the criteria, was unfair to the applicant because he missed out on applying earlier for a visa that he might have been eligible for.  Secondly, the applicant is a talented cook who has participated in and won awards in overseas competitions for cooking.

18. 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

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

    Carolyn Wilson

    
    

    Member

    Attachment 1

    857.212

    (1)      Subject to subclause (2), the applicant meets the requirements of subclause (3), (5), (6),(7) or (8).

    (2)      Subclause (1) does not apply to an applicant who does not hold a substantive visa if he or she would have satisfied the requirements of that subclause if the application had been made immediately before his or her substantive visa ceased.

    (3)      The applicant meets the requirements of this subclause if the applicant holds a qualifying visa within the meaning of subclause (4).

    (4)      For the purposes of subclause (3), a visa is a qualifying visa if it is:

    (a)      a visa of one of the following classes:

    (i)      Business (Temporary) (Class TB);

    (ii)     Cultural/Social (Temporary) (Class TE);

    (iii)     Educational (Temporary) (Class TH);

    (iv)     Family Relationship (Temporary) (Class TL);

    (v)      Interdependency (Temporary) (Class TM);

    (vi)     Medical Practitioner (Temporary) (Class UE);

    (vii)    Special Category (Temporary) (Class TY);

    (viii)   Supported Dependant (Temporary) (Class TW);

    (ix)     Skilled — Independent Regional (Provisional) (Class UX);

    (x)      New Zealand Citizen (Family Relationship) (Temporary) (Class UP);

    (xi)      Skilled (Provisional) (Class VC);

    (xii)      Skilled (Provisional) (Class VF); or

    (b)      a Subclass 457 (Business (Long Stay)) visa; or

    (c)      a Confirmatory (Temporary) (Class TD) visa granted on the basis that the applicant:

    (i)      had applied for a visa of a class or subclass specified in paragraph (a) or (b), but needed to travel to Australia before a criterion, or criteria, for the grant of that visa had been satisfied; and

    (ii)      subsequently satisfied that criterion or those criteria; or

    (d)      a Graduate — Skilled (Temporary) (Class UQ) visa;or

    (e)      a Subclass 161 (Senior Executive (Provisional)) visa; or

    (f)      a Subclass 164 (State/Territory Sponsored Senior Executive (Provisional)) visa.

    (5)      The applicant meets the requirements of this subclause if he or she:

    (a) held one or more Group 2.6 (refugee and humanitarian (temporary entry)) entry permits under the Migration (1993) Regulations permitting temporary residence in Australia for a total period of more than 12 months; and

    (b) is taken to hold a transitional (temporary) visa under the Migration Reform (Transitional Provisions) Regulations on the basis that he or she held a Group 2.6 (refugee and humanitarian (temporary entry)) entry permit under the Migration (1993) Regulations immediately before 1 September 1994.

    (6)      The applicant meets the requirements of this subclause if:

    (a)      he or she is the holder of a Student (Temporary) (Class TU) visa granted in relation to an award course at diploma level or above completed by the applicant while he or she was the holder of that visa; or

    (b)      he or she:

    (i) is the holder of a Group 2.2 (student) entry permit granted under the Migration (1993) Regulations in relation to a formal course, or a category A course, completed by the applicant while the holder of that permit; and

    (ii) is not a category B student for the purposes of the Migration (1993) Regulations.

    (7)      The applicant meets the requirements of this subclause if he or she is the holder of a Working Holiday (Temporary) (Class TZ) visa.

    (8)       The applicant is the holder of a Subclass 471 (Trade Skills Training) visa who has completed the apprenticeship for which the visa was granted.