1506506 (Migration)

[2016] AATA 4643

1506506 (Migration) [2016] AATA 4643 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JOHN MORGAN FOLAN
Mrs SIOBHAN ANNE TARMEY  Mr BRIAN MICHAEL FOLAN

CASE NUMBER:  1506506

DIBP REFERENCE(S):  BCC2015/131689

MEMBER:D. Dimitriadis

DATE:4 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal does not have jurisdiction in the matter of the third named applicant.

Statement made on 04 November 2016 at 11:07am

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 to refuse to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The first and second named applicants applied to the Department of Immigration (the Department) for the visas on 13 January 2015.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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) applied for the visa in the Direct Entry stream, to work in the nominated position of Bricklayer. 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 because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.

6. The first and second named applicants applied for review with the Tribunal and named their child, Brian Michael Folan, in the application for review. However, the child who was born in February 2015 was not included in the visa application and the delegate did not make a decision to refuse the visa to the child. There is no reviewable decision in relation to the child of the first and second named applicants and the Tribunal does not have jurisdiction in relation to the child.  

7. The applicant appeared before the Tribunal on 3 November 2016 to give evidence and present arguments.  

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal received submissions from the representative that an error was made by them and the applicants applied for a Subclass 187 visa under the Direct Entry stream instead of the Temporary Residence Transition stream. The representative submitted that the applicant meets the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. The representative stated that the applicant’s employer, CTR Pacific Pty Ltd, received approval for the application for Employer Nomination for a Permanent Position and the application listed the visa application stream as the Direct Entry stream.  The representative submitted that it nevertheless substantially meets the requirements of r.5.19(3).

11. The representative stated at the hearing that the applicant had received a letter dated 28 October 2016 from Australian Border Force which informed the applicant that the sponsorship agreement of his sponsor, CTR Pacific Pty Ltd, was cancelled on 28 October 2016 and a bar had been placed on CTR Pacific Pty Ltd from lodging any further applications for sponsorship for a period of one year. The letter also stated that this bar affects the ability of CTR Pacific Pty Ltd to sponsor the applicant under any permanent sponsored visa programme.  The representative provided a copy of the letter to the Tribunal after the hearing.

12. The Tribunal decided to proceed with the hearing and consider whether the applicant meets cl.187.234 in the Direct Entry stream and cl.187.223 in the Temporary Residence Transition stream.

13. The Tribunal has firstly considered whether the applicant meets cl.187.223 (see attachment) which is a criterion that has to be met in the Temporary Residence Transition stream. The Tribunal informed the applicant at the hearing that he did not appear to meet this criterion.

    Nomination of a position in the Temporary Residence Transition stream

14. Clause 187.223 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.

15. Clause 187.223(1)(a) states that the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3) (the Temporary Residence Transition stream). Clause 187.223(2) states that the Minister has approved the nomination. There is no information before the Tribunal that the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3). There is no information before the Tribunal that the Minister has approved a nomination in the Temporary Residence Transition stream.

16. The Tribunal is not satisfied that the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3). The Tribunal finds that the applicant does not meet cl.187.223(1)(a). The Tribunal is not satisfied that the Minister has approved a nomination under subregulation 5.19(3). The Tribunal finds that the applicant does not satisfy cl.187.223(2).

17. The Tribunal finds that the applicant does not meet cl.187.223. As the applicant does not meet cl.187.223, he does not meet the requirements for the grant of a Subclass 187 visa in the Temporary Residence Transition stream.

18. The Tribunal has also considered whether the applicant meets cl.187.234 in the Direct Entry stream (see attachment).  

    Skills and qualifications

19. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

20. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

    Exempt class of persons

21. The Minister has specified classes of persons that are exempt from the requirement of having a skills assessment and employment in the occupation for the purposes of cl.187.234(a) in IMMI 12/060 under the headings Class 2 and Class 3. The Minister has also specified persons under the heading Class 1 but this class does not apply to Subclass 187 visas and is not relevant to this case.

22. The specified classes of persons are as follows:

    Class 2

    Persons who are nominated for a visa under the Regulations for a position where their nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.

    Class 3

    Persons who are currently in Australia as the holder of a subclass 444 or 461 visa and have been working with their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application.

23. The applicant stated at the hearing that his annual income is approximately $57,000. The Department’s records show that the base salary in the nomination under the Direct Entry stream was $57,185.  The Tribunal is not satisfied that the applicant will be earning at least $180,001 per annum. Subregulation 2.57A(1) of the Regulations defines earnings to include the person’s wages, and amounts applied or dealt with in any way on the person’s behalf or as the person directs, and the agreed money value of non-monetary benefits. Based on the evidence, the Tribunal finds that the applicant’s wages and other amounts and agreed money value of non-monetary benefits do not amount to $180,001, which is the current Australian Tax Office top individual income tax rate. The applicant is therefore not a person in Class 2.

24. When the applicant made the application for the visa the subject of this review, he was not the holder of a Subclass 444 or 461 visa. The applicant is the holder of a Subclass 457 visa and provided documentary evidence that he was granted a Subclass 457 visa on 5 July 2014 to the Tribunal. The Tribunal is satisfied that the applicant is not the holder of a Subclass 444 or Subclass 461 visa. As the applicant is not the holder of a Subclass 444 or 461 visa, he is not a person in Class 3.

25. The Tribunal therefore finds that cl.187.234(a) does not apply.

    Skills assessment

26. It is a requirement at the time of application that the applicant’s skills had been assessed as suitable for the occupation if the applicant’s occupation is specified in the relevant instrument and the applicant did not obtain the necessary qualification in Australia.

27. The occupation of Bricklayer is specified by the Minister in an instrument for the purposes of cl.187.234(b) (IMMI 12/096). The applicant provided evidence to the Department that he was awarded a Level 6 Advanced Certificate for ‘Craft – Brick and Stonelaying’ from Ireland on 23 September 2006. The Tribunal is not satisfied that the applicant obtained the necessary qualifications for the occupation of Bricklayer (ANZSCO 331111) in Australia. The Tribunal finds that cl.187.234(b) applies.

28. Because the applicant’s occupation is specified in the relevant instrument and the applicant did not obtain the necessary qualification in Australia, the applicant’s skills must have been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph 187.234(b)(i) as the assessing authority for the occupation. The assessing authority specified by the Minister is TRA (Trades Recognition Australia).

29. There is no evidence that the applicant’s skills were assessed as suitable for the occupation by an assessing authority specified by the Minister. The applicant stated in the visa application that he does not have a suitable skills assessment from the relevant assessing authority. The applicant stated at the hearing that he has a skills assessment dated 23 August 2016. The representative stated that the skills assessment was from LIS Constructions Pty Ltd Trading as Quality Training in Construction. There is no evidence that the skills assessment was conducted by TRA, the assessing authority specified by the Minister. As well, the assessment was conducted more than 18 months after the date of the application.

30. The Tribunal is not satisfied that the applicant’s skills were assessed as suitable for the occupation by an assessing authority specified by the Minister. The Tribunal finds that the applicant does not meet cl.187.234(b).

31. Because cl.187.234(b) applies, cl.187.234(c) does not apply.

32. The Tribunal finds that the applicant does not satisfy cl.187.234.

33. The Tribunal is not satisfied that the applicant meets the criteria for a Subclass 187 visa in the Direct Entry stream or the Temporary Residence Transition stream. No claims have been made in respect of the Agreement stream. As the requirements that must be met by a person seeking the visa in the Direct Entry stream and the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

34. The second named applicant does not satisfy cl.187.311 because she is not a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant.

    DECISION

35. The Tribunal affirms the decision not to grant the first and second named applicants Regional Employer Nomination (Permanent) (Class RN) visas.

36. The Tribunal does not have jurisdiction in the matter of the third named applicant.

    D. Dimitriadis
    Member

    
    

    ATTACHMENT:  CLAUSE 187.234 AND CLAUSE 187.223

    187.234

    At the time of application:

    (a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

    (b) if:

    (i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph; and

    (ii) the applicant did not obtain the necessary qualification in Australia;

    the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation; or

    (c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

    187.223

    (1)      The position to which the application relates is the position:

    (a)      nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)      in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

    (c)      in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa. 

    (2)      The Minister has approved the nomination. 

    (3)      The nomination has not subsequently been withdrawn. 

    (4)      The position to which the application relates is located in regional Australia. 

    (5)      The position is still available to the applicant. 

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.