1516166 (Migration)

1516166 (Migration) [2016] AATA 4324 (22 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Paul Mark Donovan
CASE NUMBER:  1516166
DIBP REFERENCE(S):  BCC2014/3213582
MEMBER:Alison Mercer
DATE:22 August 2016
PLACE OF DECISION:  Melbourne
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.186.223 of Schedule 2 to the Regulations.

Statement made on 22 August 2016 at 4:31pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 November 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration for the visa on 26 November 2014. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Recruitment Consultant for his nominating employer, Bluefin Resources. 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.
The delegate refused to grant the visa because he found that the applicant did not meet cl.186.234 of Schedule 2 to the Regulations. The delegate noted that cl.186.234(1) required that, at the time of application, the applicant satisfied either cl.186.234(2) or (3). The delegate found that the applicant was not in a class of persons specified by the Minister for the purposes of cl.186.234(3) and thus had to satisfy cl.186.234(2). This subparagraph required, amongst other things, that the applicant had a positive skills assessment from the relevant assessing authority for his nominated occupation at the time that he made his visa application. The delegate noted that the applicant had not provided evidence that he had such an assessment.
The Tribunal received a review application from the applicant on 23 November 2015. It was accompanied by a copy of the delegate’s decision. The review application was accompanied by various documents relating to the applicant’s academic qualifications and his employment history, including:
·reference letters from Resourcing Solutions (26 November 2015) and Bluefin Resources (26 November 2015) confirming the applicant’s employment with these companies;
·contract of employment between the applicant and Boston Kennedy dated 1 October 2011 and statutory declaration made by the applicant on 26 November 2015 confirming that he was employed there between 2 April 2011 and 25 May 2013, when the company went into liquidation;
·certification from Liverpool John Moores University that the applicant was awarded a Degree of Bachelor of Laws with Honours (Class II, Division II) on 24 June 1999 and student transcript;
·organisational chart showing Melbourne Account Management Team for Bluefin Resources, showing that the applicant is Regional Director, reports to the CEO and has supervisory responsibilities for 3 teams and approximately 8 staff;
·CV for the applicant;
·UK police clearance for the applicant issued on 25 November 2015; and
·copy of the applicant’s application for a skills assessment to Vetassess dated 25 November 2015.
Subsequently, the applicant provided to the Tribunal a copy of a positive skills assessment issued to him on 26 December 2015 by Vetassess for his nominated occupation of Recruitment Consultant.
The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments. In summary, the applicant told the Tribunal that he originally lodged a skills assessment with Vetassess at the time he made his visa application, but there were delays due to the fact that Vetassess requested additional information about his previous employment experience with Boston Kennedy, which had gone into liquidation, and also about his UK academic qualifications. The additional information took time to obtain. The applicant said that both he and his employer contacted the Department’s advice hotline about this, and were advised that it would be OK for the applicant to provide the skills assessment during the processing of his visa application. They relied on this advice, but then the decision was made on the basis that the applicant could not meet cl.186.234(2) because he did not have a positive skills assessment at the time he made the visa application.
The applicant confirmed that he continued to be employed by Bluefin Resources and had a significant role there. He and his family were well settled in Australia and he was very concerned that he might not be able to continue his present employment with the company.
The Tribunal discussed with the applicant its view that (notwithstanding the telephone advice he received from the Department), cl.186.234(1) required that cl.186.234(2) or (3) had to be satisfied at the time of the visa application (that is, as at 26 November 2014) and it appeared that he could not satisfy cl.186.234(2) at that time as he only obtained a positive skills assessment from Vetassess after this date.
In relation to cl.186.234(3), the Tribunal noted that the relevant written instrument made by the Minister specifying relevant classes of persons referred mainly to Ministers of Religion, academics sponsored by Australian universities, holders of subclass 461 or 444 visas, and scientists and technical experts sponsored by Australian government agencies. However, one category of specified person was for people whose earnings would be at least equivalent to the current Australian Taxation Office (ATO) top individual income tax rate, as it was at the time of the applicant’s visa application. The applicant undertook to provide his 2014/15 financial year PAYG summary statement, and the Tribunal indicated that it would review the ATO top individual income tax rate for that financial year. It noted that for the 2015/16 financial year, the ATO website indicated that the top individual income tax rate was $180,001 and over.
On 22 July 2016, the applicant provided a copy of his PAYG payment summaries for 2015/16 and 2014/15 issued to him by Bluefin Resources Pty Ltd. They indicate that his gross payments in 2015/16 were $218,221 and that for 2014/15, they were $162,386.
After a further request from the Tribunal, the applicant provided additional documents, being:
·letter dated 24 September 2015 from the CEO of Bluefin Resources outlining that the applicant will be eligible for an ‘Agreed Employee Payment’ which is a contribution of the deal amount for the recent sale of shares in the company to an overseas company, in addition to his agreed employment salary. For the 2014/15 year, the applicant was to be paid $14,000 as an Agreed Employee Payment, in addition to his base salary;
·copy of Bluefin’s (second) application for approval of a position under the Employer Nomination Scheme for the applicant, lodged with the Department on 23 November 2015 and listing the applicant’s base rate of pay as $150,000 and his guaranteed annual earnings of $164,250;
·letter to the applicant from the CEO of Bluefin Resources dated 12 May 2015 confirming that his base salary remains $164,250 (including superannuation) and that commissions and targets remain the same as the letters dated 17 January 2014 and 29 August 2014;
·copy of letter from the Department dated 1 June 2016 approving Bluefin Resources’ nomination of the applicant in the Employer Nomination Scheme (Temporary Residence Transition stream); and
·letter dated 13 August 2015 from Bluefin Resources to the applicant outlining the target figure to be generated by his team in order to have his base salary increased to $175,200 (including superannuation); potential annual bonus accelerator conditions and calculations and conditions to be met to attract an additional one-off additional bonus.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The original issue in the present case is whether the applicant meets cl.186.234.
Skills assessment and prior employment – Direct Entry stream
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.
For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.
For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 15/091. For visa applications made on or after 28 October 2013, this 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.
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.
It is not disputed that, at the time of his visa application on 26 November 2014, the applicant did not have a positive skills assessment for his nominated occupation of Recruitment Consultant from the relevant assessing body listed in IMMI 15/091, Vetassess. The Tribunal accepts the applicant’s evidence that he had applied for one but its processing was delayed due to requests by Vetassess for additional verification of the applicant’s previous employment experience and qualifications. It further accepts, on the basis that it found him an entirely credible witness at the hearing, that he and his employer understood after contacting the Department that it would be acceptable for the applicant to provide the skills assessment after the date on which he lodged his subclass 186 visa application.
It is clear that the applicant received a positive skills assessment from Vetassess for his nominated occupation of Recruitment Consultant on 26 December 2015. However, as discussed with the applicant at the hearing, this was after the date of his visa application and cannot be used to satisfy cl.186.234 as subparagraph (1) of that clause requires that the applicant had the assessment at the time of his visa application. Accordingly, the Tribunal finds that at the time of application (as specified by cl.186.234(1)), the applicant could not satisfy cl.186.234(2).
Accordingly, the Tribunal must consider whether the applicant satisfied cl.186.234(3) as at the time of his visa application on 26 November 2014. This requires consideration of whether the applicant is in a class of persons specified in an instrument in writing (‘exempt persons’). As noted above, the relevant instrument specifying ‘exempt persons’ is IMMI 12/060.
The Tribunal has reviewed IMMI 12/060 and finds that the following persons are specified as ‘exempt’ for these purposes:
·Class 1 – Ministers of Religion who had applied for a visa to occupy a position as nominated by a religious institution; researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2, who had applied for a visa to occupy a position as nominated by Australian government agencies; or academics who had applied for a visa to occupy a position as nominated by a university in Australia;
·Class 2 – persons who were nominated for a visa for a position where their nominated earnings would be at least equivalent to the current ATO top individual income tax rate; and
·Class 3 – persons who were currently in Australia as the holder of a subclass 444 or 461 visa and who had been working with their nominating employer in their nominated occupation for at least 2 years (excluding any period of unpaid leave) in the last 3 years immediately before making their visa application.
The Tribunal is satisfied that the applicant does not fall within any of the categories specified in Class 1 above. It is further satisfied that he does not fall within Class 3 as he has not held a subclass 444 or 461 visa.
In relation to Class 2, the Tribunal is satisfied that at the time that he made the visa application on 26 November 2014, the applicant’s nominated earnings with Bluefin Resources were $164,250 (including superannuation but not including commission), as per his subsequent confirmation of employment statement from his employer dated 26 November 2015, provided to the Tribunal prior to hearing. The Tribunal further notes that the applicant’s taxable income in the relevant Australian financial year (2014/15) was $162,386 as per his 2014/15 PAYG statement summary from Bluefin Resources. The Tribunal has reviewed information available on the ATO’s website and is satisfied that for 2014/15, the ATO top individual income tax rate was $180,001 and over: The Tribunal notes that this remains the top individual tax rate in the current financial year, and that it has been the top individual tax rate since 2008/9.
As noted above, the applicant’s nominated base salary in the original nomination by Bluefin Resources made in 2014 indicated that his salary was $164,250 plus bonuses. The Tribunal does not have any information about what bonuses (if any) he was expected to receive at the time of his visa application in late November 2014. It notes that the applicant has provided evidence from September 2015 that in the 2014/15 year, he was to be paid a bonus of $14,000 and might be eligible for further bonuses, depending on whether certain performance indicators were met by him and/or his team. However, there is no quantifiable evidence about any bonuses that were to be paid – in addition to his base salary of $164,250 – at the time of his visa application on 26 November 2014. Accordingly, the Tribunal cannot be satisfied that, at the time of that visa application, the applicant’s nominated earnings were going to be at least equivalent to the current ATO top individual income tax rate of $180,001.
Based on the information before it, the Tribunal is not satisfied that at the time of his visa application, the applicant’s nominated earnings would have been at least equivalent to the current ATO top individual income tax rate. As such, the Tribunal finds that the applicant does not fall within Class 3 above, and therefore was not an exempt person at the time of his visa application, as required by cl.186.234(1) and (3). He thus does not meet a mandatory criterion in the Direct Entry stream.
However, that is not the end of the matter.
The Tribunal notes that the applicant’s tax return for the 2015/16 financial year was $218,221, from which it is evident that his current earnings are at least equivalent to the current ATO top individual income tax rate of $180,001. Moreover he remains employed by Bluefin Resources, for whom he has now worked for over 3 years, and that employer has now had a new nomination of the applicant approved in the Temporary Residence Transition stream for the same position of Recruitment Consultant.
Temporary Residence Transitional stream
In the Tribunal’s view, there is no reason why the applicant could not now be assessed against the Temporary Residence Transitional stream criteria, given that the Tribunal has found that he cannot satisfy the Direct Entry stream criteria, and given that he is now the subject of an approved nomination for the same position with the same employer made in the Temporary Residence Transitional stream.
Based on the information before it, the Tribunal has assessed the applicant against cl.186.223, and makes the following findings:
·the position to which the visa application relates is the position nominated in an application that sought to meet the requirements of r.5.19(3), in relation to which the applicant was identified as the holder of a subclass 457 visa, and in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa – this satisfies cl.186.223(1)(a), (b) and (c);
·the nomination has been approved on 1 June 2016 – this satisfies cl.186.223(2);
·there is no evidence before the Tribunal to indicate that the nomination has been subsequently withdrawn – therefore, cl.186.223(3) is met;
·the evidence provided by the applicant at hearing was that the position was still available to him – this satisfies cl.186.223(4); and
·the application for the visa was not made more than 6 months after the most recent nomination was approved – therefore, cl.186.223(5) is met.
Accordingly, the Tribunal finds that the applicant satisfies cl.186.223 and that, given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria in the Temporary Residence Transition stream for the visa.
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.186.223 of Schedule 2 to the Regulations.
Alison Mercer
Member

[2016] AATA 4324

22 August 2016

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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