Castro (Migration)

[2019] AATA 910

Castro (Migration) [2019] AATA 910 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joselito Castro
Master Rojz Jorel Castro
Miss Pauline Aira Ann Castro
Mr Joerveth Bechson Castro
Mrs Elizabeth Castro

CASE NUMBER:  1613738

HOME AFFAIRS REFERENCE(S):           BCC2015/109439; BCC2016/3003109

MEMBER:Wan Shum

DATE:19 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2019 at 1:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – health criteria – subject of an approved nomination – position no longer available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.224; Schedule 4, PIC 4007

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 16 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 12 January 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 delegate refused to grant the visa as the first named applicant did not satisfy cl.186.224(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not satisfied by his son, Master Rojz Jorel Castro.

4. The applicants have sought review of that decision and were represented in relation to the review by a registered migration agent.

5. The applicants appeared before the Tribunal on 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ernalyn D Chow, Horacio D. Dioso. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. While the delegate refused the visa on the basis that Master Rojz Jorel Castro did not meet PIC 4007, the issue on review is that the position to which the application relates is no longer available to the first named applicant.

   Nomination of a position

8. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

9. In addition, this criterion also requires that:

   ·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.

10. During the hearing, it became apparent that the first named applicant was no longer working for TNR Communication Pty Ltd, the employer that had nominated him for the Subclass 457 and now Subclass 186 visa. He told the Tribunal that the company had lost some projects and had not been able to keep all the technicians of which he estimated there were 25 to 30. He referred to this having occurred sometime in the second half of 2018. As evidence of recent pay, he showed the Tribunal a payslip from an employment agency and not TNR Communication. The Tribunal requested a letter from TNR Communication to confirm that the position was still available. The representative submitted that they had a meeting with the employer sometime in January 2019 and he repeatedly said the position is still there but admitted when further time was allowed to provide a letter from the employer that they had been unable to obtain one. Thus, while it has been submitted that the position is still available, no evidence has been provided from the employer to support this assertion. The Tribunal does not accept that the position is still available.

11. The Tribunal acknowledges that this is an unfortunate circumstance in that it appears that the applicant’s position only became unavailable while the matter was on review and that the application for review was lodged over 2 years ago. However, it is a time of decision requirement that the position is still available. The evidence given by the first named applicant at the hearing to the Tribunal is that it no longer is available.

12. Given this, the Tribunal is not satisfied that the position is still available and cl.186.223 is not met.

13. It was requested that further time to be allowed to consult medical specialists regarding the opinion and the estimated cost of providing services to Master Rojz Jorel Castro. However, in order for the requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services to be waived it is necessary for the applicant to satisfy all other criteria for the grant of the visa applied for: PIC 4007(2)(a). In this case, the first named applicant does not satisfy cl.186.223 and he thus cannot be said that he satisfies all other criteria for the grant of the visa. In the circumstances, the Tribunal declined the request to allow further time.

14. The first named 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

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

    Wan Shum
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

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

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.