1607039 (Migration)

[2016] AATA 4480

1607039 (Migration) [2016] AATA 4480 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joey Lee Thomas
Mr Daniel Derek Cullinane

CASE NUMBER:  1607039

DIBP REFERENCE(S):  BCC2015/2601200

MEMBER:Mary-Ann Cooper

DATE:29 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 September 2016 at 11:16am

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 4 May 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 7 September 2015. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Hairdresser. 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.186.234 of Schedule 2 to the Regulations because he had not provided evidence that, at the time of application, his skills had been assessed as suitable by a relevant assessing authority.

6. The applicants appeared before the Tribunal by telephone on 26 September 2016 to give evidence and present arguments.

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 meets cl.186.234.

   Skills assessment and prior employment

9. 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.

10. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

11. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 16/060. 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.

12. 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.

13. Prior to the hearing the applicant provided a copy of a successful skills assessment, dated 16 June 2016, for his nominated occupation of Hairdresser and documents demonstrating his fulltime employment in that occupation.

14. As confirmed at the hearing, on 7 September 2015, the date of application for the visa, the applicant did not have a suitable skills assessment from the relevant assessing authority for his nominated occupation. He said his employer had undertaken all the arrangements for the processing of the visa and had not informed him that he needed the skills assessment at the date of his application. While the Tribunal has sympathy for the applicant’s circumstances, as was explained at the hearing, it has no discretion in this regard.

15. As a result, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.234(2)(a), and therefore cl.186.234(2) as a whole.

    Class of specified persons (‘exempt persons’)

16. Alternatively, the applicant can meet c.186.234 if he falls within a relevant class of ‘exempt persons’ as specified in IMMI 12/060. The Minister has specified the following classes of persons that are exempt from the requirement of having a skills assessment and employment in the occupation:

    Class 1

    Persons who are employed in certain occupations as follows:

    · Ministers of Religion (ANZSCO 272211) who have applied for a visa under the

    Regulations to occupy a position as nominated by a religious institution;

    · Researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2, who

    have applied for a visa under the Regulations to occupy a position as nominated by

    Australian government agencies;

    · Academics who have applied for a visa under the Regulations to occupy a position

    as nominated by a university in Australia. An academic is a person to be employed

    at an Academic Level of A, B, C, D or E as a University Tutor (ANZSCO:

    242112), University Lecturer (ANZSCO: 242111) or Faculty Head (ANZSCO:134411).

    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.

17. As confirmed by the applicant at the hearing, at the time of visa application, he was not a person who was to be employed as a:

    ·Minister of Religion (ANZSCO Code 272211);

    ·Researcher, scientist and technical specialist at ANZSCO skills levels 1 or 2; or

    ·An Academic as a University Tutor (ANZSCO Code 242112), a University Lecturer (ANZSCO Code 242111), or Faculty Head (ANZSCO Code 134411).

18. He is therefore not an exempt person under Class 1.

19. He further confirmed that his annual salary is below $180,001. Accordingly, the Tribunal finds that the applicant was not nominated for a visa for a position where his nominated earnings would be at least equivalent to the current Australian Tax Office top individual income tax rate, that is $180,001 or more per annum, and accordingly does not fall within Class 2.

20. Departmental records, and the applicant at hearing, also confirmed that, at the time of application, he did not hold a subclass 444 or 461 visa. He is therefore not an exempt under Class 3.

21. On this basis the Tribunal finds that the applicant was not in a class of exempt persons specified by the Minister. He therefore does not meet the requirements of subclause 186.234(3) at the time of application.

22. For the above reasons, it follows that he does not meet the requirements of cl.186.234.

    CONCLUSION

23. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

    Secondary applicant

24. The delegate also refused a visa to the secondary applicant, the partner of the visa applicant and who is included in his application.

25. There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 186.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa. As the applicant does not satisfy the primary criteria for a subclass 186 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visas, or any other subclass.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mary-Ann Cooper
    Member