Elder (Migration)

[2018] AATA 3385

Elder (Migration) [2018] AATA 3385 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Douglas Elder

CASE NUMBER:  1517135

DIBP REFERENCE(S):  BCC2015/1849233

MEMBER:Karen Synon

DATE:1 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2018 at 9:19am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement for evidence of skills assessment to be provided at the time of the application – Skills assessment obtained after date of application – Applicant not part of a class of exempt persons – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.234(2)(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 24 November 2015 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 28 June 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. 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 ‘Bricklayer’.  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, at the time of application, an assessing authority had not assessed the applicant’s skills as suitable for the occupation.

6. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

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 cl.186.234.

10. 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.

11. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

12. For the skills assessment, the relevant assessing authorities for each occupation are specified in a registered instrument.  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.

13. 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.

14. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Bricklayer’ which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified is Trades Recognition Australia (TRA).

15. The visa application records that the applicant answered ‘yes’ to the question ‘does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?’ and that TRA was entered as the assessing authority with an application lodged on 17 June 2015 with reference/receipt number N1032523.

16. The primary decision records that the applicant provided a skills assessment from the relevant assessing authority for the occupation of Bricklayer dated 12 August 2015. The delegate noted that cl.186.234(2)(a) requires that the applicant provide evidence of a suitable skills assessment at the time of application which means that the skills assessment must clearly show that the applicant had his skills assessed as suitable by the relevant assessing authority no later than the date on which the visa application was made. As the skills assessment provided was dated after the visa application was made, it did not meet regulation 186.234(2)(a). As the applicant was also not in a class of persons specified as exempt the visa was consequently refused.

17. The applicant’s employer Mr Anestis Zachariadis, the Director/Owner of Mazi Construction Pty Ltd, submitted a letter to the Tribunal dated 2 December 2015 in which he expressed frustration that the delegate did not give the applicant the option to withdraw his application so he could apply again, given that the nomination was approved, rather than refusing the visa and leaving the applicant no option but to go offshore to lodge another application or lodge an appeal with the Tribunal.  Mr Zachariadis writes this has caused his company unnecessary grief and if the applicant went offshore it would cause him and his business stress and pressure due to its significant workload.  Mr Zachariadis states the applicant is one of his best workers, is crucial to his business and is irreplaceable.  He requests a review of the decision based on the fact that it will cause a significant impost and burden on his business which places him under undue stress and pressure.  He is aware of other applicants in similar situations which were at least offered the opportunity to withdraw their applications.  He concludes that this country is short of good, qualified trades people like the applicant and that “we” should not be making it so difficult for good, honest and hard-working people like the applicant to make Australia their home.

18. Also provided prior to the hearing were documents relating to other parties which the Tribunal, at the hearing, noted did not appear relevant to this review.  The applicant’s representative said she provided these as examples of applicants who were able to provide their skills assessments at the time of decision rather than time of application.  The Tribunal noted that different visa classes have different time of application and time of decision criteria and that the requirements can change depending on when visas are lodged.  The Tribunal said it can only apply the Regulations in force at the relevant time.

19. During the hearing the Tribunal explained that the issue before it is whether the applicant had provided evidence, with his visa application, of a successful skills assessment from the relevant assessing authority, which in the case of the occupation of a Bricklayer is the TRA.  The Tribunal noted that while he had provided a successful skills assessment, this was dated 12 August 2015 which is after the visa application date of 28 June 2015.  The Tribunal explained that as this is a time of application criteria nothing provided after the time of application could satisfy this requirement.

20. Invited to make any oral submissions the applicant said the delegate did not give him an opportunity to retract and re-lodge his application.

21. As the applicant did not provide evidence of a successful skills assessment at the time of application, he does not satisfy cl.186.234(2).

22. The Tribunal explained that the other way to fulfil this requirement is if he is a member of a class of persons who are exempt.  The Tribunal explained that the following classes of people are exempt for the purposes of clause 186.234 from having to provide a skills assessment and asked if he believes he falls under any of these classes:

    CLASS ONE

    ·a Minister of Religion;

    ·a Researcher, Scientist or Technical Specialists at ANZSCO Skill Levels 1 or 2 who have applied to occupy a position nominated by an Australian government agency;

    ·an Academic who has applied for the visa to occupy a position as nominated by university in Australia and who is to be employed at an Academic Level of A, B, C, D, or E as a University Tutor, a University Lecturer, or Faculty Head.

    CLASS TWO

    ·Persons were nominated for a visa for a position with their nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.[1]

    CLASS THREE

    ·Persons who are currently in Australia as the holder of a subclass 444 or 461 visa and have been working with the nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the last three years immediately before making their visa application.

    [1] Which is income in excess of AUD$180,000 from 1 July 2018 <>

    The applicant said he was not a part of any class of exempt perrons.  The applicant said he understands the Tribunal cannot make a decision in his favour.

23. As the applicant is not in a class of exempt persons specified in the relevant Legislative Instrument he does not satisfy cl.186.234(3).

24. As the applicant does not satisfy cl.186.234(2) or (3) he does not satisfy cl.186.234 in its entirety.

25. 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

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

    Karen Synon
    Member