1514157 (Migration)

[2016] AATA 4812

1514157 (Migration) [2016] AATA 4812 (9 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Neil Robert Woodward
Mrs Jayne Anne Woodward

CASE NUMBER:  1514157

DIBP REFERENCE(S):  BCC2015/1485933

MEMBER:Hugh Sanderson

DATE:9 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 December 2016 at 2:08pm

CATCHWORDS

Migration - Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 – Applicant already turned 50 years of age at time of application – Delays in lodging application – No discretion available to Tribunal

LEGISLATION

Migration Act 1958,
Schedule 2 Migration Regulations 1994, IMMI 13/059, cl.187.231(a)

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 24 May 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) is seeking the visa in the Direct Entry stream, to work in the nominated position of metal fabricator. 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.187.231 of Schedule 2 to the Regulations because at the time of the application the applicant had already turned 50 years of age and was not a person in a class of persons specified in the relevant instrument.

   Background

6. The first named applicant (hereinafter “the applicant”) is a citizen of the United Kingdom and was born on 9 March 1965. The second named applicant is his wife who applied for the visa as a member of his family unit.

7. The delegate who considered the application noted the following issues:

   ·As the application was filed on 24 May 2015, the applicant had already turned 50 years of age at the time of the application and therefore did not meet the criteria in cl.187.231(a); and

   ·No information had been provided to demonstrate the applicant was person in a class of persons specified by the Minister in a legislative instrument IMMI 13/059.

8. The delegate found that the applicant did not meet the criteria in cl.187.231. The delegate found that the applicant not made any claims that he met any alternate stream for the subclass. Accordingly, the delegate refused the application. As the second named visa applicant was dependent upon the granting of the visa to the applicant, her application was refused.

9. The applicant wrote to the Department after the decision was issued stating as follows:

   MMC (his employer) filed my paperwork on 6/3/15 three days before my 50^th birthday and I was told by them it had been filed and now I was to get my paperwork in order as I couldn’t do it before I had a file number from them. After getting all my paperwork in order and my medicals I lodged my application on 24/5/15 wrongly believing I was ok to do so after my birthday. I asked MMC in the May 2014 to start getting things ready but it took some until three days before my birthday to sort it thus leaving me no time to prepare things. Could you please take this into consideration.

10. The applicants appeared before the Tribunal on 9 December 2016 to give evidence and present arguments. The hearing was conducted by telephone as the applicant had returned the United Kingdom. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE         

12. The issue in the present case is whether the applicant at the age requirements for the grant of the visa.

    Age requirements

13. At the time the visa application is made, an applicant in the Direct Entry stream must either not have turned 50, or must be in a class of persons specified in the legislative instrument: cl.187.231.

14. In the present case the applicant was aged 50 years, 2 months and 15 days old at the time of application. The applicant claimed that the delay in filing his application was due to delays in the filing of the nomination by his employer. He said the nomination was filed just before he turned 50, even though he had told his employer months before that date to file the nomination documents. He said that once the nomination was filed, which was done just before he turned 50 years old, he did not realise that there was then a deadline to him to file his application.

15. The Tribunal accepts that the applicant’s employer may have been very slow in lodging their nomination documents and that this may have led to the applicant only being able to lodge his documents after he had turned 50 years of age. Unfortunately, there is no discretion under the legislation which allows an extension of time for the filing of the application.

16. As the applicant had turned 50 years old at the time of the filing of the application he does not meet this criteria for the grant of the visa. There is no information before the Tribunal that the applicant is in a class of specified persons so that he does not have to meet the age requirement. Accordingly, the applicant does not meet the criteria in cl.187.231.

17. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

18. The second named applicant is dependent upon the success of the applicant in order to meet the criteria for the grant of her visa. As the applicant does not meet the criteria for the grant of the visa, the decision to refuse the application for the second named visa applicant must also be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Hugh Sanderson
    Member