HAIDAR (Migration)

[2018] AATA 99

HAIDAR (Migration) [2018] AATA 99 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr AHMED MOHAMED AHMED HAIDAR
Ms IMAN ALI AHMED HAIDAR
Miss TEBER AHMED MOHAMED HAIDAR
Mr BASHEER AHMED MOHAMED HAIDAR
Mr FAHED AHMED MOHAMED HAIDAR
Miss THARA  AHMED MOHAMED HAIDAR

CASE NUMBER:  1604963

DIBP REFERENCE(S):  BCC2015/2829365

MEMBER:R. Skaros

DATE:15 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2018 at 10:57am

CATCHWORDS

Migration – Employer Nomination (Permanent) – Subclass 186 (Employer Nomination Scheme) – Direct entry scheme – Nominated position – Research and Development Manager – Primary applicant does not fall within the exemptions – Employed by an Australian University – Did not have a suitable skills assessment at the time of application – Secondary applicants – Members of the same family unit

LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994 Schedule 2 cl 186.234, 186.234(2), 186.234(3)

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 4 April 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 to the Department of Immigration for the visas on 28 September 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Research and Development Manager. 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 visas because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because at the time of application the applicant’s skills had not been assessed as suitable for the occupation by the specified assessing authority. The delegate was also not satisfied that the applicant was an exempt person as specified in the relevant instrument.

6. The applicants were represented in relation to the review by their registered migration agent. A copy of the delegate’s decision record was provided with the application for review.

7. The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments.

8. The Tribunal notes that a s.375A non-disclosure certificate in relation to folios 24 and 25 was placed on the Department’s file. The certificate states that disclosure of the information would be contrary to the public interest because it contains information relating to internal processes. The information contained in the stated folios appears to be a print out of the Department’s records regarding the progress of the application. The information does not appear to be relevant to the issues in the review and the Tribunal does not consider the certificate to be valid because it merely describes the nature of the documents (i.e. information relating to internal processes) which in the Tribunal’s view is not sufficient to establish a valid ground for public interest immunity. Furthermore, there is nothing in the information to suggest that these internal documents were given in confidence. The Tribunal proceeds on the basis that the s.375A certificate on the Department’s file is not valid and that the material contained in the relevant folios is not relevant to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements in cl.186.234.

    Skills assessment and prior employment

11. 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.

12. For the skills assessment, the relevant assessing for the nominated occupation of Research and Development Manager is specified in the instrument as Vetassess. 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. For the purposes of cl.186.234(3), the relevant class of exempt persons has been specified in IMMI 15/083. The Tribunal notes that IMMI 15/109 may also be relevant as it was introduced to run concurrently with IMMI 15/083. The Tribunal acknowledges that the current instrument (IMMI 17/058) specifying the classes of exempt persons purports to apply to 186 visa applications that have not been finally determined. The Tribunal notes however that cl.186.234 is a time of application requirement and as such considers that the relevant instrument is that which was in force at the time of application, namely IMMI 15/083 and 15/109. Even if the Tribunal is wrong and IMMI 17/058 applies retrospectively and is the applicable instrument in this case, having considered the classes of persons specified all the instruments, the Tribunal is satisfied that the applicant does not come within any of the classes of exempt persons in any of the instruments. The classes of exempt persons in IMMI 15/083 and 15/109 are as follows:

    • Researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2, who have been nominated by Australian government agencies.
    • Academics nominated by a university in Australia to be employed at a specified academic level in the position of University Tutor, Lecturer or Faculty Head. 
    • Subclass 444 and 461 visa holders currently in Australia who have been working with their nominating employer in their nominated occupation for at least 2 years (excluding any periods of unpaid leave) in the 3 year period immediately before applying for their visa.
    • Persons nominated for a position in respect of which their nominated earnings will be at least equivalent to the current ATO top individual income tax rate.[1]

    [1] This class of persons does not appear in the current instrument IMMI 17/058.

15. During the review the Tribunal received a number of submissions and documents. The documents included copies of correspondence between the applicant, Vetassess and the University of Wollongong, who employed the applicant under the 457 visa scheme. Also provided was a copy of the 457 visa approval which indicated that the applicant’s nominated occupation with the University of Wollongong was Research and Development Manager and a position description for the position of Research Fellow. The applicant was granted the 457 visa on 7 August 2012 which was in effect until 30 September 2015. Correspondence between the applicant and the University of Wollongong indicates that the Department had determined that the tasks of the position of Research Fellow were associated with the occupation Research and Development Manager (132511) and that it was on this basis that the nomination for the purpose of the 457 visa was approved.

16. The employer nomination in respect of this application was made by Training Global Australasia Pty Ltd. At the hearing, the applicant gave evidence that his nominating employer is a private company (i.e. it is not a government agency or part of a university). He confirmed that the nominated occupation is Research and Development Manager and stated that the nominated salary is $96,000 inclusive of superannuation.

17. The applicant indicated on the visa application form that he did not have a suitable skills assessment from the relevant assessing authority. When this was discussed with the applicant at the hearing he stated that he had submitted the application for a skills assessment with Vetassess one month before lodging the visa application. He contacted Vetassess prior to lodging the visa application and was advised that his skills assessment application was still processing. He stated that he only had a few days before the expiry of his 457 visa and decided to lodge the permanent residence visa application without the skills assessment. He received the outcome of the skills assessment a few days after lodging the visa application however the outcome was negative. The applicant stated that the agent may have made an error by not indicating that there was an exemption.

18. In relation to the skills assessment the applicant stated that the Department decided that the duties of the position Research Fellow was in the occupation of Research and Development Manager. He stated that he had been working in that role for the last 5 years and could not understand why he received a negative outcome from Vetassess. The applicant stated that he believes some error may have occurred with his application though he was not sure whether the error was made by Vetassess, the Department or the University of Wollongong. The Tribunal explained to the applicant that his position with the University of Wollongong appears to have been assessed by the Department in the occupation Research and Development Manager and that this was done for the purposes of the 457 visa. The Tribunal noted that it was assessing this application against the requirements of the Subclass 186 visa and that it was bound by the regulations for that visa class. Whether the Department had made an error in assessing the applicant’s occupation under the 457 visa programme, is not relevant to the issue in this review. The applicant stated that he was nominated by the Department in the occupation of Research and Development Manager and his skills assessment should have been approved. He stated that the Department put him in a difficult situation and should have assessed him as a Research Fellow. The Tribunal notes that it is unable to go behind the decision of Vetassess or the Department’s decision regarding the applicant’s nominated occupation under the 457 visa programme.

19. On the evidence before it, the Tribunal finds that at the time of application the relevant assessing authority (Vetassess) had not assessed the applicant’s skills as suitable for the nominated occupation of Research and Development Manager. On this basis the Tribunal finds that the applicant does not meet cl.186.234(2)(a). As the applicant does not meet cl.186.234(2)(a), he therefore does not meet cl.186.234(2) as a whole.

20. It is not necessary to assess whether the applicant has at least 3 years of full time work experience as required by cl.186.234(2)(b), as this requirement is in addition to the requirement for a skills assessment. In other words, even if the applicant satisfies cl.186.234(2)(b) he would still not be able to meet the requirements cl.186.234(2) because he did not have a suitable skills assessment at the time of application.

21. The Tribunal discussed with the applicant the classes of exempt persons, as set out above, and the submissions made by his representative. In summary, the representative argued that the applicant that the meets the skills because he was previously nominated by the University of Wollongong, whom he worked for three years on a full time basis at the skill level required in the occupation Research and Development Manager and that cl.186.234(b) applies. The representative took issue with the negative assessment outcome from Vetassess given that the Department determined that the applicant’s position was Research and Development Manager. At the hearing the Tribunal explained to the applicant that working for a University in Australia for three years does not fall within one of the exemptions. The applicant referred to information on the Department’s website which indicated that if he was (which he understood as being in the past) nominated by an Australian university then he was exempt. The Tribunal explained that the instrument refers to being nominated for a specified position, namely Tutor, Lecturer or Faculty Head, by an Australia University and does not encompass past nominations for a 457 visa. The applicant stated that he feels like a victim. He also noted that if his visa is not approved he would have to depart Australia and that there were issues in his home country of Yemen. The Tribunal acknowledged the difficulties stated by the applicant, but noted that it did not have any discretion in the circumstances and must make its decision in accordance with the relevant legislative provisions.

22. The Tribunal has had regard to all of the evidence before it, including the written submissions, supporting documents and the applicant’s oral evidence however there is nothing in the evidence to suggest that the applicant comes within any of the exemptions provided for by the instruments.

23. For the reasons that follow, the Tribunal is not satisfied that at the time of application the applicant was a person in a class of persons specified in the relevant instruments. The applicant did not apply for the visa to occupy a position nominated by an Australian government agency or an Australian University in Australia. The applicant did not hold and did not claim to hold a Subclass 444 or 461 visa. The applicant’s annual salary is $96,000, his earnings will therefore not be at least equivalent to the current ATO top individual income tax rate which was $180,001.

24. Given the above, the Tribunal finds that the applicant was not in a class of persons specified in the instruments. The applicant therefore does not satisfy cl.186.234(3).

25. As the applicant does not meet cl.186.234(2) or (3), the applicant is unable to satisfy cl.186.234(1). Therefore, cl.186.234 is not met.

26. 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.

27. In respect of the secondary applicants, the Tribunal notes that there is no information before it to suggest that any of the secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the Tribunal has found that the first named applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as they are not members of the family unit of a person who satisfies the primary criteria for the visa. 

    DECISION

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

    R. Skaros
    Member