Banez (Migration)

[2019] AATA 2244

Banez (Migration) [2019] AATA 2244 (2 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arvin Hamto Banez

CASE NUMBER:  1703597

HOME AFFAIRS REFERENCE(S):           BCC2016/440798

MEMBER:Bridget Cullen

DATE:2 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 02 June 2019 at 5:23pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – associated nomination refused – applicant’s failing to comply with sponsorship undertakings – request for ministerial intervention – decided not to refer the matter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233, rr 1.13A, 1.13B

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 and Border Protection on 10 February 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 January 2016. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Metal Fabricator – 322311.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the associated nomination was refused.

6. The applicant appeared before the Tribunal on 2 March 2018, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Joe Lewandowski, the applicant’s employer; Mr Peter Stupak, a project manager/electrical engineer at the applicant’s place of work and Mr Raymond Ting, the applicant’s employer’s accountant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

7. The Applicant was represented in relation to the review by Mr Guy Gilbert, SC, of counsel, who was instructed by the Applicant's registered migration agent and solicitor, Mr Ricky Bustos of M+K Lawyers. The representatives attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.233.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. On 29 January 2016, the applicant lodged their visa application, with Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust listed as their nominating employer. On 13 October 2016, the Department refused the nomination, on the basis of the Department held information adverse to the nominating company – namely, the applicant’s failings to comply with sponsorship undertakings. An appeal regarding the nominating refusal was lodged with the Tribunal on 2 November 2016.

13. The Applicant’s visa was refused on 10 February 2017, with the review lodged on 1 March 2017.

14. On 1 May 2019, the Tribunal affirmed the decision to refuse the nomination. On 3 May 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting them to comment on the affirmed nomination, which the Tribunal would, subject to their comment or response, be the reason, or part of the reason for affirming the decision under review.

15. On 16 May 2019, the Tribunal received a request for an extension to provide a response. The Tribunal granted an extension until 31 May 2019.

16. On 29 May 2019, the Tribunal received a response, which partly states the following:

    “We note that on 1 May 2019, the Tribunal affirmed the decision to refuse a nomination lodged by Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust. Mr. Banez was the nominee associated with this refused nomination.

    We appreciate that it now follows that Mr. Banez is not able to meet cl.186.223(2) of the Migration Act 1958 in regard to his application for a permanent visa under the Employer Nomination Scheme (subclass 186).”

17. As the Applicant’s associated nomination has been refused, with the decision affirmed, the applicant does not meet cl.186.233(2).

18. Therefore, cl.186.233 is not met by the applicant.

19. 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.

20. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant’s representative, in their response to the 359A letter, provided the following reasons for requesting the Tribunal refer the matter for Ministerial Intervention:

    “Mr. Banez is a highly skilled tradesperson who has lived and worked in Australia since 2011 as an employee of Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust.

    Mr. Banez is also an upstanding member of his local community in Australia, being an active volunteer at Guardian Angels Church and the Wynnum Manly Australian-Filipino Association.

    Due to no fault of this own, his application for a permanent visa sponsored by his current employer will not succeed at Appeal. This is devastating news for Mr. Banez.

    Due to the unfortunate situation which Mr. Banez finds himself in, we respectfully request that the Tribunal make a recommendation to the Minister for Immigration, Citizenship and Multicultural Affairs in regard to an application under Ministerial Intervention to grant Mr. Banez a permanent visa to remain in Australia.”

21. The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Bridget Cullen
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.