Gonzales (Migration)

[2019] AATA 3225

Gonzales (Migration) [2019] AATA 3225 (7 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sergio Jr Gonzales
Mrs Elizabeth Gonzales
Ms Karen Christine Gonzales
Ms Krystal Gem Gonzales

CASE NUMBER:  1727573

HOME AFFAIRS REFERENCE(S):          BCC2015/3079641

MEMBER:Wan Shum

DATE:7 August 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 07 August 2019 at 4:25pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Minister of Religion – age requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.231

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 26 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 21 October 2015. 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Minister of Religion.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.231 of Schedule 2 to the Regulations because the applicant was over 50 when the application was made and none of the age exemptions applied.

5. The applicants sought review of that decision and were represented in relation to the review.

6. The applicants appeared before the Tribunal on 16 July 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the first named applicant (the applicant) meets the age requirements.

9. At the time the visa application is made, an applicant in the Direct Entry stream must either meet certain age requirements, or must be in a class of persons specified in the relevant legislative instrument which in this case is IMMI 17/058: cl.186.231. In this case, as the visa application was made before 1 July 2017, the applicant must not have turned 50 at the time of application.

10. The applicant in this case was aged 52 years at the time of application. He had nominated the occupation of Minister of Religion. This is not one of the occupations that is in a class of persons that is exempt for the purposes of cl.186.231(b). Nor is the applicant a person who held a visa specific to New Zealand citizens. The applicant confirmed at the hearing that he was not claiming an exemption but did not wish the Tribunal to proceed to a decision until 31 July 2019, as his employer had lodged a labor agreement nomination application on 31 January 2019. They were hoping for an outcome by 31 July 2019 based on a 6 month processing timeframe.

11. The Tribunal noted that the outcome of that labor agreement application could not have any direct impact on the current visa application and advised that it would proceed to a decision on or after 1 August 2019.

12. Given the applicant was over 50 when the application was made, and he is not in a class of specified persons, the Tribunal finds that cl.186.231 is not met.

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

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

    Wan Shum
    Member