Browne (Migration)

[2019] AATA 1838

Browne (Migration) [2019] AATA 1838 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Scott James Browne

CASE NUMBER:  1701558

HOME AFFAIRS REFERENCE(S):           BCC2016/1556252

MEMBER:Karen McNamara

DATE:12 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 June 2019 at 9:32am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Surveying or Spatial Science Technician – subject of an approved nomination – nomination did not meet relevant requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 186.233

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 19 January 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 26 April 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 Surveying or Spatial Science Technician (ANZSCO 312116).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because on 10 November 2016 the nomination lodged by Gyro Australia Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicant appeared before the Tribunal via telephone from Ireland on 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator Mr James Buchanan by video conference from Perth.  

7. The applicant was represented in relation to the review by his registered Migration Agent.

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

   Background

9. On the 26 April 2016, the applicant lodged with the Department an application under the visa subclass 186 – Direct Entry stream.

10. The Tribunal notes that the nomination application lodged with the Department on 22 April 2016 by the nominator Gyro Australia Pty Ltd was made under the Employer Nomination Scheme –visa subclass 186 - Direct Entry stream.

11. On 6 March 2019, the Tribunal wrote to the nominator via their authorised representative bringing to their attention that the nomination application dated 22 April 2016 was made under the Employer Nomination Scheme Direct Entry Stream - visa subclass 186 which is non-regional. The nominator was advised for the nominee to succeed in his review, the Tribunal must be satisfied there is an employer nomination approved under the relevant stream. The Tribunal noted that evidence accompanying the review application addressed regulation 5.19(4)(h)(ii), however at the time, the Tribunal had formed the preliminary view the relevant alternate criteria under 5.19(4)(h)(i) was the relevant provision in this case. Accordingly the Tribunal invited the nominator to make a submission and provide evidence in support of regulation 5.19(4)(h)(i).

12. On 12 March 2019, the Tribunal received advice from the nominator and applicant’s representative that both erred when making their applications and that the nomination was intended to be made under the RMS Direct Entry Stream – visa subclass 187. The nominator and applicant have maintained this position throughout the course of the hearing and subsequent submissions.

13. At the hearing on 14 March 2019, the Tribunal advised that should the nomination application meet the requirements for a visa subclass 187 nomination, this would have consequences for the associated visa applicant. The Tribunal subsequently formed the view having considered the nominator’s submissions, that the nomination application be considered under the RMS Direct Entry stream – visa subclass 187, with consideration afforded to assessment of regulation  5(19)(4)(h)(ii).

14. On 23 May 2019, the Tribunal set aside the Department's decision not to approve the nomination in relation to the application by the nominating employer, Gyro Australia Pty Ltd.

15. On 23 May 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to set aside the Department's decision not to approve the nomination. The Tribunal explained this was relevant to the applicant meeting cl.186.233 in so far as whilst the nomination met the requirements of       r. 5(19)(4)(h)(ii), the requirements of r. 5(19)(4)(h)(ii), do not fall within the criteria of cl.186.233 (1)(a).

16. The Tribunal notes numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

17. The Tribunal notes the Migration Agent’s submissions including those dated 8 April 2019,    9 April 2019, 28 May 2019 and 7 June 2019.  These submissions suggest the nominator and applicant erred in their applications by nominating the incorrect visa class and request that the applicant now be assessed under the requirements of the RMS Direct Entry stream – visa subclass 187.

18. The Tribunal further notes the Migration Agent’s submission of 7 June 2019 in which the agent claims the employer is in dire need of the applicant’s services. The Tribunal places little weight on this claim as the Tribunal was told at the hearing the applicant left the nominator’s employ in September 2017 to return to Ireland. The nominator also told the Tribunal that the applicant is a distant relative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the requirements of cl.186.233.

20. The Tribunal has considered the evidence before it including submissions received on behalf of the applicant and the nominator that the applicant’s application for review be assessed under the RMS Direct Entry stream – visa subclass 187. The Tribunal acknowledges the applicant’s evidence that the nominator submitted the visa application on his behalf and does not dispute the evidence that the nominator erred in making the nomination and associated visa application under the Employer Nomination Scheme Direct Entry Stream - visa subclass 186. However, the Tribunal has no power to change the type of visa class the applicant has applied for and in this instance the Tribunal must assess the application for review under the requirements of cl.186.233.

    Nomination of a position

21. 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.

22. 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.

23. Cl.186.233 (1) provides:

    (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)”

24. On 23 May 2019, the Tribunal found the nomination by Gyro Australia Pty Ltd inter alia met the requirements of r. 5(19)(4)(h)(ii). The requirements of r. 5(19)(4)(h)(ii), do not fall within the criteria of cl.186.233 (1)(a). As a consequence the Tribunal therefore finds that the applicant does not satisfy cl.186.233 (1) (a).

25. Therefore, cl.186.233 is not met.

26. 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.

    DECISION

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

    Karen McNamara
    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.