Henaway (Migration)

[2018] AATA 2657

Henaway (Migration) [2018] AATA 2657 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Deena Henaway

CASE NUMBER:  1806400

DIBP REFERENCE(S):  BCC2017/2960497

MEMBER:Mary Sheargold

DATE:15 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 June 2018 at 3:02pm

CATCHWORDS

Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nominated position – Primary School Teacher –  Evidence of an ongoing position with employer – No approved nomination – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19 Schedule 2 cl 186.223

CASES

Singh v MIBP [2017] FCAFC 105

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 Home Affairs on 20 February 2018 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 17 August 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Primary School Teacher. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. On 20 February 2018, the delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was no approved nomination.

6. The Tribunal received a review application from the applicant on 9 March 2018, accompanied by a copy of the delegate’s decision.  No further submissions were received.

7. The applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments.  The applicant was represented in relation to the review by her registered migration agent.  However, the representative did not attend 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 whether there is an approved nomination.

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. At the hearing, the applicant gave evidence that she understood her nomination application by Melton West Primary School was refused by the Department because the application was lodged 2 weeks and 1 day prior to the applicant meeting her 2 year requirement for eligibility to apply for this visa in the Temporary Residence Transition stream.  The applicant told the Tribunal that she has secured an ongoing role as the physical education teacher at Melton West Primary School, but that the position has been put on hold for her pending the outcome of her visa application.

13. When questioned as to why the nominating employer, Melton West Primary School, did not seek a review of the Department’s decision in relation to its nomination application, the applicant told the Tribunal that Melton West Primary School had separate legal representation and that they relied on her migration agent in deciding the approach with the review applications for this matter.  The applicant provided documents showing Melton West Primary School’s intention to retain the applicant as a teacher at the school on an ongoing basis.

14. Despite the applicant’s ability to demonstrate her nominating employer’s intent to retain her in employment, without an approved nomination, she cannot satisfy cl.186.223 of Schedule 2 to the Regulations. At the hearing, the applicant acknowledged that she understood this. Because there is no approved nomination, the Tribunal finds that the applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations.

15. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) considered the mirroring provision in cl.187.233 of the Regulations in relation to the requirement to have an approved nomination and stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

16. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.186.223 in relation to her application. The nomination by Melton West Primary School was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

17. Therefore, cl.186.223 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 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.

    DECISION

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

    Mary Sheargold
    Member