Kamau (Migration)

[2017] AATA 1602

Kamau (Migration) [2017] AATA 1602 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fidelis Nyathira Kamau

CASE NUMBER:  1702388

DIBP REFERENCE(S):  BCC2015/3089487

MEMBER:Denise Connolly

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 10:28am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – Nomination application refused – Employer sanctioned and barred for 3 months – Purported small mistake concerning an underpayment – No discretion to waive the requirement

LEGISLATION

Migration Act 1958, ss 65, 140M(2)

Migration Regulation 1994, Schedule 2, cl 186.223, r 1.13, r 5.19

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 27 January 2017 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 22 October 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 the applicant. 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 Temporary Residence Transition stream, to work in the nominated position of Cook. 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. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application associated with the position was refused.

6. The applicant appeared before the Tribunal on 25 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her employer, Anne Louise Zahra, and her colleague, Cynthia Nuestro.  

7. 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

8. 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.

9. 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.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that the nomination application associated with the position, lodged by Foundation for Education and Training Limited, was refused on 9 December 2016. Accordingly the delegate found cl.186.223(2) was not met.

11. The applicant has provided to the Tribunal various documents relevant to her visa application. Included in those documents is a copy of the nomination refusal notice addressed to her employer, Foundation for Education and Training Limited. It states the delegate refused the nomination application because r.5.19(3)(g) was not met. The delegate in that matter found that the employer had been sanctioned under s.140M(2) and barred for 3 months from making future applications for approval as a standard business sponsor. The delegate in that case considered this information to be adverse.

12. At the hearing the Tribunal explained the requirements of cl.186.223. The applicant explained to the Tribunal that her employer had been sanctioned because of a small mistake concerning an underpayment. She believes the Department thought she was being exploited however she is confident it was an innocent mistake made in 2014. She indicated the nomination and visa applications were made before the decision to sanction the employer. Had those applications been dealt with earlier the nomination application would not have been refused. She understands the employer did not appeal the sanction.

13. The applicant’s employer explained that there had been an underpayment to the applicant but it was an inadvertent error. It was rectified as soon as it was identified and the bar was only for 3 months. As it was a nominal penalty Foundation for Education and Training Limited did not appeal. Ms Nuestro indicated that the applicant did not respond to an invitation to comment, sent to the applicant before the decision to refuse the visa, because the Department’s letter was vague.

14. The Tribunal explained to the applicant that, even if it accepts all submissions made about the circumstances leading to the employer’s sanction, it does not have any discretion to waive the requirement that the applicant meets cl.186.223(2).

15. The Tribunal has taken into account all of the evidence before it. It accepts the applicant’s evidence, as supported by her employer, that the mistake leading to the 3 month bar was an inadvertent mistake.  The Tribunal however is not reviewing the decision to refuse the nomination application. It only has jurisdiction to review the decision to refuse to grant the Subclass 186 visa.

16. On the evidence before it, the Tribunal is not satisfied that in this case the nomination application associated with the position was approved. Therefore the applicant does not meet cl.186.223(2).

17. Accordingly 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.

    Denise Connolly
    Member