1821448 (Migration)

[2019] AATA 1363

1821448 (Migration) [2019] AATA 1363 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821448

MEMBER:R. Skaros

DATE:29 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2019 at 3:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – nomination withdrawn by sponsor – alleged workplace bullying and sexual harassment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 9 July 2018 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 for the visas on 27 April 2017. 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist with [Sponsoring Employer 1].

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223(3) of Schedule 2 to the Regulations because the nomination lodged by [Sponsoring Employer 1] in respect of the applicant had been withdrawn.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was withdrawn on 24 May 2018.

7. On 6 December 2018, the Tribunal wrote to the applicants requesting information about the nomination. On 18 January 2018, the applicant’s representative wrote to the Tribunal advising that the nomination is not the subject of a review and that the nominee had experienced sexual harassment by her former employer. The representative provided details about the nature of the harassment experienced by the nominee at the time that the nomination was processing. It was submitted that the nomination was withdrawn following the nominee’s resistance to her former employer’s sexual advances. The representative provided a copy of the nominee’s application to the Australia Human Rights Commission. The representative acknowledged that the Tribunal is not able to consider compassionate circumstances in the case and noted that to be able to make a request to the Minister under s.351 of the Act they required the Tribunal to make a decision on the application for review.

8. The applicants appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the nomination has been approved.

    Nomination of a position

12. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn.

13. As noted above, the applicant applied for the visa on the basis of an employer nomination made by [Sponsoring Employer 1] in which she was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the relevant nomination made by [Sponsoring Employer 1] was withdrawn.

14. At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the information before it which indicates she does not meet that requirement. In response, the applicant stated that she had been employed by the nominator as a marketing specialist since 2013. She stated that she had been the subject of bullying and harassment in the workplace and provided details of incidents which she indicated occurred around the time she asked her employer about nomination and the status of her visa. The applicant provided copies of an employment contract, employment references and other supporting documents as evidence of her employment with the nominator. The applicant stated that she had invested her life building up the nominator’s business and that it was unfair that the employer could just withdraw the nomination. The applicant also stated that the nominator had not complied with their sponsorship obligations.

15. The Tribunal has had regard to the evidence before it and accepts that the applicant was employed with the nominator as claimed, however, as explained to the applicant at the hearing, the issue before the Tribunal relates to whether the relevant nomination has been approved and has not been subsequently withdrawn. There is no provision in the legislation to consider the matters raised by the applicant regarding the conduct of the nominator. The Tribunal must make its decision in accordance with the relevant legislative provision.

16. The evidence before the Tribunal indicates that the relevant nomination for the position lodged by [Sponsoring Employer 1], in relation to which the applicant made the required declaration in the visa application, has not been approved and has been withdrawn. In the circumstances, the applicant does not meet at least one of the requirements in cl.186.223 for the grant of the visa.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

18. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

19. The Tribunal acknowledges that the applicants intends to make a request to the Minister and notes that following the Tribunal’s decision the applicants will be able to make a direct request to the Minister under s.351. 

    DECISION

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

    R. Skaros
    Member

    
    

    ATTACHMENT A

    186.223(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 … visa; and

    (c)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.

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

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

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