1505839 (Migration)

[2015] AATA 3822

1505839 (Migration) [2015] AATA 3822 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafaelito Datiles Santos

CASE NUMBER:  1505839

DIBP REFERENCE(S):  BCC2014/3287776

MEMBER:Denise Connolly

DATE:3 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.221 of Schedule 2 to the Regulations.

Statement made on 3 December 2015 at 11:36am

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 9 April 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 1 December 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Painting Trades Worker. 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 applicant has provided his passport issued by the Republic of the Philippines. It confirms that he was born on 2 December 1964. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.221 of Schedule 2 to the Regulations because the delegate found that the application was lodged on 2 December 2014 and the applicant had already turned 50.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Age requirements

8. The issue in the present case is whether the applicant meets cl.186.221. It requires that at the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 13/059.

9. In the present case the applicant turned 50 on 2 December 2014.

10. The delegate found that the visa application was made on 2 December 2014. However prior to the scheduled hearing the representative provided to the Tribunal evidence indicating the visa application was made on 1 December 2014, before the applicant turned 50.

11. On 2 December 2014 the Department sent to the applicant an acknowledgement of application for an Employer Nomination (Subclass 186) visa stating that the visa application had been made on 2 December 2014. However the representative has provided to the Tribunal a copy of the visa application which records that it was Generated on: Mon, 01 Dec 2014 16:34:28, EST.  The visa application was lodged online using the prescribed application form, Form 1408 (Internet).

12. The representative has also provided a summary of the application which was generated and printed from ImmiAccount stating the visa application was made on 1 December 2014. He has also provided a copy of the tax invoice/receipt dated 1 December 2014 showing that the visa application fee was paid on 1 December 2014.

13. The representative has provided a copy of the tax invoice/receipt for the nomination application made by the applicant’s sponsor, International Investment Holdings Pty Ltd, dated 28 November 2014. 

14. The Tribunal is satisfied the internet application was made on 1 December 2014 using the correct form and that the relevant application charge was paid. Having regard to the applicant’s movement records the Tribunal is satisfied the applicant was onshore when the application was made and that he was the holder of a Subclass 457 visa.  Having regard to the receipt issued to the sponsor in relation to their nomination application, and the written submissions that International Investment Holdings Pty Ltd is the sponsor which has nominated the applicant in their nomination application, the Tribunal is satisfied the applicant has been nominated in a nomination application lodged under r.5.19.

15. Having considered all of the evidence the Tribunal is satisfied the visa application was validly made on 1 December 2014. The Tribunal is also satisfied that on 1 December 2014 the applicant had not yet turned 50.

16. The applicant was aged 49 years at the time of application. Therefore cl.186.221 is met.

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

18. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.221 of Schedule 2 to the Regulations.

    Denise Connolly
    Member