John Philip (Migration)

[2017] AATA 1251

John Philip (Migration) [2017] AATA 1251 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Benjamin John Philip

CASE NUMBER:  1511844

DIBP REFERENCE(S):  BCC2015/1051319

MEMBER:Alison Mercer

DATE:18 July 2017

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 18 July 2017 at 11:48am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Minister of Religion – Nomination refusal affirmed by tribunal

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 186.233, r 5.19, r 1.13A, r 1.13B

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 26 August 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 to the Department of Immigration for the visa on 7 April 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Minister of Religion. 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 who are applying from inside Australia but who are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination by an approved nominator. The delegate found that the applicant did not meet this criterion as the nomination of him by the New Covenant Pentecostal Church had been refused by the Department on 24 July 2015.

6. The Tribunal received a review application from the applicant on 29 August 2015, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Thomas Cherian, as his representative and authorised recipient for correspondence for the purposes of the review.

7. The matter was constituted to a Tribunal Member on 15 December 2016.  On 27 March 2017, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 23 May 2017.  The Tribunal advised that it would also hold a hearing for the applicant’s nominator, the New Covenant Pentecostal Church, on the same date, at which the applicant was also requested to appear to give evidence.  He was advised that this would directly precede the hearing in relation to his visa application refusal.

8. The applicant appeared before the Tribunal on 23 May 2017 to give evidence and present arguments at the hearing relating to the nomination refusal of the New Covenant Pentecostal Church, and the hearing relating to his own subclass 186 visa refusal.

9. At the visa refusal hearing, the Tribunal discussed with the applicant its view that the outcome of the visa review application was dependent on the outcome of the associated review application made by New Covenant Pentecostal Church in relation to its nomination of him, as if this was not successful, then the Tribunal would have to find that the applicant did not satisfy cl.186.233. On the other hand, if the Tribunal set aside the Department’s decision to refuse the nomination and substituted a decision to approve the nomination, then the Tribunal would make a decision in relation to the visa application review finding that cl.186.233 was met and remitting the matter back to the Department for consideration of the remaining visa criteria. The applicant indicated that he understood. He reiterated the evidence he had given at the earlier nomination review hearing, to the effect that he believed that there was a genuine employer – employee relationship between himself and the New Covenant Pentecostal Church, and that his senior role in the Church was to serve the Australian community to the best of his ability.

10. The Tribunal indicated that in the event that it affirmed the decision to refuse the nomination of the applicant made by the New Covenant Pentecostal Church, it would write to the applicant to advise him of this and to give him an opportunity to respond before making its decision on his visa application review.

11. On 30 June 2017, the Tribunal affirmed the decision to refuse the nomination made in relation to the applicant by the New Covenant Pentecostal Church. On the same date, the Tribunal wrote to the applicant via his agent, pursuant to s.359A of the Act, to invite him to comment on or respond to this information. The Tribunal advised the applicant that as it had affirmed the Department’s decision to refuse the nomination made by the New Covenant Pentecostal Church, there was currently no approved nomination of him by that organisation. The Tribunal advised that it considered that this information was relevant to the review as it indicated that the applicant was not currently the subject of an approved nomination made by the same organisation that had originally nominated him, and that if the Tribunal formed this view, then it would find that he did not meet cl.186.233. The Tribunal advised the applicant that such a finding would be a reason (or part of the reason) to affirm the decision to refuse him a subclass 186 visa.

12. The Tribunal requested that any comments or response that the applicant wished to make to this information be provided to it by 14 July 2017.  The applicant was also advised that he could seek an extension of time to respond or provide comments, but should make any request for an extension by 14 July 2017.

13. The Tribunal did not receive any response, comments or request for an extension of time to provide these, by the due date of 14 July 2017.  It has received no further communication from the applicant or the agent up to the date of its decision in this matter (18 July 2017).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

15. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

16. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination (cl.186.233(2));

    ·the nomination has been approved and has not been subsequently withdrawn (cl.186.233(3) and (4));

    ·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 (cl.186.233(4A));

    ·the position is still available to the applicant (cl.186.233(5)), and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.186.233(6)).

17. As noted above, the Tribunal finds that at the time the applicant made his visa application on 7 April 2015, he was the subject of a nomination application made by the New Covenant Pentecostal Church which was pending with the Department. The Department refused to approve that nomination on 27 April 2015. On 30 June 2017, the Tribunal affirmed that decision (see AAT MRD decision 1511021 of 30 June 2017). Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by New Covenant Pentecostal Church at the time of its decision, as required by cl.186.233(3).

18. As the applicant must satisfy all the subparagraphs of cl.186.233 in order to meet that criterion, the Tribunal must find that cl.186.233 is not met.

19. 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

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

    Alison Mercer
    Member