Chong (Migration)

[2018] AATA 831

Chong (Migration) [2018] AATA 831 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sun Fatt Chong

CASE NUMBER:  1616862

DIBP REFERENCE(S):  BCC2015/4010112

MEMBER:R. Skaros

DATE:9 January 2018

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 09 January 2018 at 1:11pm

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Skills not suitable for the occupation – No skills assessment from relevant authority – Held a Certificate III in Carpentry - No exemption for AQF suitable qualification – No exemption for requisite skill level for nominated occupation

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.234, cl 186.234(1) cl 186.234(2), cl 186.234(3), IMMI 15/060, IMMI 15/083, IMMI 17/058

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 September 2016 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 to the Department of Immigration for the visa on 22 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, 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 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 Carpenter. 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 visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because the applicant did not demonstrate that, at the time of application, an assessing authority specified by the Minister has assessed the applicant’s skills as suitable for the occupation. The delegate was also not satisfied that the applicant was exempt from meeting the skills requirements.

6.    The applicant appeared before the Tribunal on 9 November 2017, to give evidence and present arguments. The Tribunal also received oral evidence from the employer Mr Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7.    The applicant was represented in relation to the review by his registered migration agent. A copy of the decision record was provided to the Tribunal.

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 cl.186.234

Skills assessment and prior employment

1. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

2. For this criterion, the relevant class of exempt persons has been specified in an instrument. The Tribunal notes that IMMI 15/083 was the instrument applicable at the time of the visa application and against which the delegate assessed the applicant. On 1 July 2017 IMMI 15/083 was replaced by IMMI 17/058. Although Part 4 of IMMI 17/058 indicates that this instrument applies to visa applications made on or after 1 July 2017, and also to applications for Subclass 186 and 187 visas made before 1 July 2017 and not finally determined by that date, the Tribunal notes that cl.186.234 is a time of application requirements. In light of this, the Tribunal considers that the relevant instrument in this case is that which applied at the time of application, namely IMMI 15/083. However, even if the Tribunal is wrong, the Tribunal notes that the fewer exemptions specified in IMMI 17/058 were identically worded to some of the exemptions in IMMI 15/083 and in the circumstances of this case, the applicant does not come within any of the classes of persons specified in either instrument.

3. For the skills assessment, the relevant assessing authorities for each occupation have been relevantly specified in IMMI 15/060. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

4. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

5. The relevant instrument specifies Trades Recognition Australia (TRA) as the relevant assessing authority for the occupation of Carpenter. It was noted in the decision record that that the applicant had declared in the application that he did not have a skills assessment from the relevant assessing authority. In response to the Department’s request for further information, the applicant’s representative provided submissions and supporting documents which relevantly included a trade qualification certificate (Certificate III in Carpentry) issued by the Institute of Training. It was submitted that the applicant is exempt as his qualifications were issued by a recognised AQF authority and has extensive work experience as a carpenter. Other submissions regarding the importance of the applicant to the employer were also made.

6. On review, the Tribunal received further submission regarding the activities and nature of the employer’s business, the nominated position, the skill level required for the role and the suitability of the applicant.

7. At the hearing the Tribunal discussed with the applicant the requirements in cl.186.234 and the evidence before it which suggests that he does not fall within any of the classes specified by the Minister to be exempt. The applicant appeared confused and indicated that he thought he had demonstrated his skills by providing the Certificate III. After some discussion with the representative about the requirements and the suggestion that the applicant may have obtained a suitable skills assessment, the Tribunal agreed to provide additional time for the representative to check their records to see if a suitable skills assessment was obtained at the relevant time and to provide it to the Tribunal. The time to provide the information has since passed and to date the Tribunal has not received any evidence to show that the applicant had a suitable skills assessment at the time of application.

8. Given the above, the Tribunal is not satisfied that, at the time of application, the applicant’s skills have been assessed as suitable for the occupation by the specified assessing authority. It follows that the applicant does not meet cl.186.234(2).

9. In relation to whether the applicant is an exempt applicant, the Tribunal notes the following. The applicant was nominated by Masterhome Holdings Pty Ltd for the position of Carpenter on a nominated base salary of $98,000 (total remuneration $107,310). The evidence indicates that the applicant’s nominated earnings will not be at least equivalent to the ATO top individual income tax rate, which is $180,001. The applicant was not nominated by an Australian government agency in the following occupations: researcher, scientist and technical specialist at ANZSCO skill levels 1 or 2. The applicant was not nominated by an Australian university in Australia. There is also no evidence to suggest that the applicant held Subclass 444 or 461 visas. It follows, and the Tribunal finds, that the applicant does not fall within any of the classes of persons specified in the relevant instrument.

10. The Tribunal acknowledges the submissions made regarding the applicant’s qualifications, skills and experience, however, there is no provision in the instrument which provides an exemption for persons with an AQF suitable qualification and/or have the requisite skill level for their nominated occupation.

11. As the applicant does not fall within a class of exempt persons, the applicant does not satisfy cl.186.234(3).

12. As the applicant does not meet cl.186.234(2) or (3), he is unable to satisfy cl.186.234(1) and therefore does not meet cl.186.234.

13. 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

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

R. Skaros
Member