Bond (Migration)

[2018] AATA 1546

Bond (Migration) [2018] AATA 1546 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Carol Janson Bond
Dr Gilbert Irvin Bond
Miss Grace Regina Bond
Master Francis Elijah Bond

CASE NUMBER:  1614428

DIBP REFERENCE(S):  BCC2015/3919107

MEMBER:Ian Berry

DATE:28 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 28 March 2018 at 2:22pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Applicant does not satisfy age requirement – Whether the applicant is exempt from the age requirement – Applicant is not an “exempt person” – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 186.231(a)

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 31 August 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 for the visas on 17 December 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, 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 “public relations manager”. 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.186.231(a) of Schedule 2 to the Regulations because the applicant had turned 50 years at the time of the lodgement of her application and did not otherwise come within the specification of class of persons exempt from the age criteria as set out in IMMI 15/083.

6. The applicants appeared before the Tribunal on 13 December 2017 and 22 January 2018 to give evidence and present arguments. The Tribunal received evidence from the applicant and the visa applicant Mr Gilbert Bond.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the review applicant was a person who was exempt from the age restriction of 50 years as set out in clause 186.231(b).  Persons exempt from the age restriction must come within classes 5 and 7 of IMMI 15/083.

   Age requirements

2. At the time the visa application is made, an applicant in the direct entry stream must either meet certain age requirements, or must be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.231(b). In this case, at the time of her making her application on 17 December 2015 the applicant had turned 50.

3. The question to be determined is whether the review applicant is exempt from the age restriction. Classes 5 and 7 in IMMI 15/083 specifies the age exempt persons as being researchers, scientists and technical specialists nominated by the Australian scientific government agencies; university lecturers and faculty heads; New Zealand nationals or their family members who have been working in the nominated occupation for their nominating employer for at least 2 years; or, certain medical practitioners working in regional Australia.

4. The applicant had applied in the 186 visa application as a “public relations manager”. Leaving the age restriction to one side, it appears she was not performing that role. Her role was more in line with that of a researcher and a lecturer.

5. She did undertake a role, at least in part, as a public relations manager but strictly not with her nominator but with an organisation incidental to the activities of the nominator. It was at a previous period and not with the nominator and therefore irrelevant.

6. With that occupational background including her present occupation, she was not exempt by falling within the classes 5 and 7 of IMMI 15/083. The applicant was neither a researcher occupying a position within an organisation as nominated by Australian scientific government agencies, nor a New Zealand national, nor a medical practitioner working in regional Australia.

7. Therefore, cl.186.231(b) has not been met.

8. 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 stream. 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.

9. The review applicant and the dependent applicants had made a combined application. The visa applicants had not made any claim toward satisfying this class of visa other than as claimed members of the family unit for the purposes of this application. The review applicant was unable to meet clause 186.231 and therefore the visa applicants were unable to meet criteria set out in clause 186.311(a) of Schedule 2.

10. The Tribunal finds that the visa applicants have not satisfied clause 186.311.

DECISION

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

Ian Berry
Member