BOONMETAVESUB (Migration)

[2019] AATA 3192

BOONMETAVESUB (Migration) [2019] AATA 3192 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mudcharin BOONMETAVESUB

CASE NUMBER:  1826978

HOME AFFAIRS REFERENCE(S):          BCC2017/3516854

MEMBER:Wan Shum

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2019 at 3:47pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – failure to attend scheduled hearing – Temporary Residence Transition stream – Massage Therapist – age requirement – not exemption class of persons – asset to nominating employer’s business – no power to waive requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), 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 Home Affairs on 3 September 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 186 visa on 26 September 2017. 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). 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.

3. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Massage Therapist.

   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 was over 50 and was not in a class of persons that are exempt from the age requirement.

4. The applicant was represented in relation to the review by a registered migration agent.

5. On 13 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The notice was sent to the email address of her representative. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 16 July 2019. The invitation stated that if she did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders to the mobile number provided about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal notes that the applicant is currently the holder a Subclass 457 visa which is effective.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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 the age requirements for the visa.

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must meet certain age requirements, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.186.221. In this case, as the visa application was made before 1 July 2017, the applicant must not have turned 50 at the time of application.

11. In the present case the applicant was aged 56 years at the time of application. She thus does not meet cl.186.221(a).

12. As to whether she is in a class of persons specified in the relevant instrument for paragraph 186.221(b), the applicant is seeking the visa for the position of Massage Therapist. There is no evidence before the Tribunal that she is any of the following: 

    ·researchers, scientists and technical specialists at the ANZSCO skill levels one or two, who are nominated by Australian scientific government agencies;

    ·academics who are nominated by an Australian university;

    ·a Medical Practitioner who has held a Subclass 457 and was employed in regional Australia, and the nominated position is in regional Australia.

13. While the applicant claimed to have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for the Subclass 186 visa; her annual income for each year in the four year period was not at least equivalent to the Fair Work High Income Threshold. The copies of the PAYG payment summaries issued by the employer in respect of the applicant show that her wages were $54,002 for the years ending 30 June 2015 and 30 June 2016 and less than $40,000 for the year ending 30 June 2014. This is significantly less than the Fair Work High Income Threshold for each of these years.

14. The Tribunal finds that she is not in a class of persons specified for the purposes of paragraph 186.221(b). Therefore, cl.186.221(b) is not satisfied.

15. The applicant’s employer wrote a letter in response to the Department’s request for information acknowledging that the applicant was over the minimum age requirement for the visa but stated that she is an asset to their business, and provided numerous letters of support from customers regarding the applicant’s superior services. They requested that she not be judged by her age.

16. While the Tribunal appreciates that the nominating employer genuinely wishes to maintain her employment, the applicant must satisfy cl.186.221. The Tribunal does not have any power to waive the age requirement.

17. On the information before the Tribunal, cl.186.221 is not met.

    Conclusion

18. 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.

    DECISION

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

    Wan Shum
    Member