BELGA (Migration)

[2018] AATA 362

BELGA (Migration) [2018] AATA 362 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NOLI BELGA

CASE NUMBER:  1610309

DIBP REFERENCE(S):  BCC2015/2861616

MEMBER:Ian Berry

DATE:8 February 2018

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 08 February 2018 at 11:07am

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement for applicant to be under the age of 50 – Applicant over age of 50 – Whether applicant comes within an exception to the requirement – Applicant does not come within an exception

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.221

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 22 June 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa (“visa”) under s.65 of the Migration Act 1958 (“Act”).

2. The applicant applied to the Department of Immigration and Border Protection (“department”) for the visa on 1 October 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme) (186 Visa).

3. The criteria for the grant of the visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (“Regulations”). The primary criteria must be satisfied by at least 1 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 1 of 3 alternative visa streams:

   (a)      The Temporary Residence Transition stream;

   (b)      the Direct Entry stream; or

   (c)       the Agreement stream.

4. This applicant is seeking the 186 visa in the temporary residence transition stream, to work in the nominated position of a diesel motor mechanic. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.221 of Schedule 2 to the Regulations because the applicant, at the time of the lodgement of his visa application on 1 October 2015, had already reached the age of 50 years having been born on 30 July 1965. He did not fall within 1 of the classes of persons who are exempt from that age criterion.

6. The applicant appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal’s 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 his registered migration agent. His representative attended the Tribunal hearing. The applicant gave evidence on his own behalf.

8. For the following reasons, the Tribunal has concluded the visa applicant had reached the age of 50 years, and did not come within one of the exceptions to the age criterion (186.221(b)).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant, notwithstanding his having reached the age of 50 years at the time of the lodgement of his application on 1 October 2015, he fell within the classes of persons which were the exceptions for an applicant where the 50 year age limit applied. The tribunal refers to Migration (IMMI 15/083 - Specification of Class of Persons 2015) referred to in clause 186.221 of the Migration Regulations 1994.

Age requirements

1. At the time of the making the application, an applicant in the temporary residence transition stream must either not have turned 50 years of age, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.221(b) to the Regulations.

2. In the present case the applicant was aged 50 years and 3 months at the time of application. Therefore, cl.186.221(a) is not met[1].

Exemptions to the Age Restriction

[1] D1, f. 59 Republic of the Philippines certificate of live births.

1. The substantive issue for this applicant is his falling within 1 of the exceptions to the cl.186.221(a) restriction.

2. Legislative instrument IMMI 15/083, sets out the exceptions to the age restriction which are detailed as follows:

   (a)Class 5 (clause 6 of the legislative instrument) exempts certain persons who are employed in occupations:

   (i)Researchers, scientists and technical specialists at levels 1 or 2 of ANZSCO who will hold the position as nominated by Australian scientific agencies.

   (ii)Senior academics who have applied for a visa to occupy a position as nominated by an Australian university in Australia.  “Senior academic” is defined as a person to be employed at an academic level of B, C, D or E as either a University Lecturer (ANZSCO 242111) or a Faculty Head (ANZSCO 134411).

   (b)Class 6 ( clause 7 of the legislative instrument ) Persons who have been working for their nominating employer as the holder of a UC 457 visa holder for at least 4 years immediately before applying for their visa and whose annual earnings for each year in the 4 year period was a least equivalent to the Fair Work High Income Threshold;

   (c) Medical practitioners who are effectively employed in regional areas and who had been working in their nominated occupation as a 457 visa holder for 4 years come within this exception.  A medical practitioner who had been working in their nominated occupation as the holder of a 422 Visa, before becoming a holder of a 457 visa for at least 2 years in the 4 years immediately before applying for the 186 Visa also were exempted.

3. The department’s delegate made the finding that the applicant had not been employed by the applicant’s present employer for at least 4 years.  The applicants 1 October 2015 application refers to his having worked as a diesel mechanic with his present employer from 15 May 2012 to 28 September 2015 a period of 3.37 years[2].  Regardless, the applicant conceded that his income did not at any time while working for his present employer, attain the equivalent to the Fair Work High Income Threshold in any year of the 4 year period.

   [2] D1, f.139.

4. As the applicant is over the age of 50 years, and does not fall within 1 of the classes of persons who are exempt, the Tribunal can only make the finding that the department’s decision must be affirmed.

DECISION

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

Ian Berry
Member