Geran (Migration)

[2018] AATA 2602

Geran (Migration) [2018] AATA 2602 (20 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Carlito Estrada Geran
Mrs Dona Turingan Geran
Miss Diane Turingan Geran
Mr Carl Turingan Geran
Mr Emmanuel Turingan Geran

CASE NUMBER:  1613267

DIBP REFERENCE(S):  BCC2015/3938622

MEMBER:Denise Connolly

DATE:20 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2018 at 10:59am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Requirement for the applicant not to have turned 50 – Applicant aged over 50 at time of application – Applicant not in an exempt class of persons – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.221

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 December 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Electronic Instrument Trades Worker (General) (ANZSCO 342314).  This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.221 of Schedule 2 to the Regulations because the applicant was aged 54 years at the time of application and not an exempt person.

6. The applicants appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Pastor Sharon Vermeulen from the applicants’ church. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Age requirements

1. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.187.221.

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant, born 18 June 1961, has been nominated to work as an Electronic Instrument Trades Worker.

3. The applicant was aged 54 years at the time of application. Therefore to meet the requirements of cl.187.221 he must be in a class of persons specified in the relevant instrument.

4. The relevant instrument specifies classes of persons for the purposes of cl.187.221, in summary, as follows:

   a.Class 5 - researchers, scientists and technical specialists at the ANZSCO skill levels 1 or 2 who have applied for the visa to occupy a position as nominated by Australian scientific government agencies; or certain senior academics.

   b.Class 6 - persons who have been working for the nominating employer as the holder of a Subclass 457 visa for at least four years immediately before applying for their Subclass 186 or Subclass 187 visa, and whose annual earnings for each year in the four-year period was at least equivalent to the Fair Work High Income Threshold; or certain medical practitioners.

5. The delegate notes that the applicant was granted a Subclass 457 visa on 29 December 2006 and subsequently granted other Subclass 457 visas, to work for the same employer, the nominator, on 30 June 2011 and 10 April 2015. He has therefore been working for the nominating employer for at least the four years immediately before applying for the visa. The delegate notes however that his annual earnings for the previous years were $71,012, which is less than the Fair Work High Income Threshold, for the four years immediately before applying.

6. After making the review application the applicant provided submissions from the Lord of the Nations Christian Church, attesting to the role he plays in the church community, and a Statutory Declaration from the spouse of a church elder attesting to the applicants’ commitment to the church. He also provided a letter of support from his sponsor and employer.  Prior to the hearing the applicant provided a Statutory Declaration from Felicidad Vittali stating she relies on the applicants for support. The representative provided submissions as to why the Minister should intervene.

7. The Tribunal notes that in July 2011, the Fair Work High Income Threshold was $118,100. In 2012 it was $123,300, $129,300 in 2013, $133,000 in 2014 and $136,700 in 2015.

8. At the hearing the applicant confirmed that while he considers himself to be a technical specialist he was not nominated by an Australian scientific government agency. Nor is he a senior academic. He therefore is not a person who meets the requirements for Class 5.

9. The applicant also confirmed that his income in the relevant four year period was not at least equivalent to the Fair Work High Income Threshold. There is no evidence to suggest he is a medical practitioner. He therefore is not a person who meets the requirements for Class 6.

10. On the basis of the above findings the Tribunal finds that the applicant does not fall within any of the exemption categories. .As the applicant was 54 at the time of application, the Tribunal must find that cl.187.221 is not met.

11. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

12. The applicants wish for their matter to be recommended for Ministerial intervention. The Tribunal has considered the written material and the oral evidence of Pastor Vermeulen.  The Tribunal accepts that the applicants play an important role in their church community as attested by their Pastor at the hearing and by others in writing. It accepts that if the visas are not granted the church will need to find suitable replacements to make the contributions the applicants make in their community. However having regard to the Ministerial guidelines the Tribunal is not certain that this matter would be referred to the Minister even if the Tribunal recommends it. The representative indicated that she would assist the applicants in approaching the Minister requesting he consider intervening in this case. The Tribunal is confident that the representative and the church community will provide the applicants with assistance and support in this process.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Denise Connolly
Member