Leorum (Migration)

[2024] AATA 2334

Leorum (Migration) [2024] AATA 2334 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sopheap Leorum

REPRESENTATIVE:  Mr Anthony Stolar

CASE NUMBER:  2111706

HOME AFFAIRS REFERENCE(S):          BCC2021/185711

MEMBER:Amanda Mendes Da Costa

DATE:25 June 2024

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 25 June 2024 at 3.43pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Labour Agreement stream – Minister of Religion (Monk) – no approved nomination – essential community support and religious guidance to the Buddhist and Cambodian communities – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 186.242; r 1.13

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 13 August 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 February 2021. 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 (Cth) (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.

4. In the present case, the applicant is seeking the visa in the Labour Agreement stream, to work in the nominated position of Minister of Religion (Monk) ANZSCO 272211.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.242 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. On 11 June 2024 the Tribunal wrote to the applicant pursuant to s359A of the Act, inviting the applicant to comment on or respond to information which the Tribunal considered would be the reason or part of the reason (subject to the applicant’s comments or response) would be the reason or part of the reason for affirming the decision under review.

7. That information was:

   ·     The Cambodian Buddhist Association of Queensland Incorporated (the nominator) made a nomination application for the position of Minister of Religion (Monk) ANZSCO 272211. A nominee of the Department refused that application, and the applicant subsequently lodged an application with this Tribunal for review of that decision. On 11 June 2024 the Tribunal affirmed the delegate’s decision. This means that the position to which the application relates is not the subject of an approved nomination in the Labour Agreement stream.

8. The Tribunal explained the relevance of the information and the consequences of the Tribunal relying on it in making its decision.

9. On 24 June 2024 the applicant responded to the Tribunal’s invitation (in writing) conceding that he does not meet the requirements of cl 186.242 of Schedule 2 to the Regulations as he is not the subject of an approved nomination. In his response the applicant advises that he consent to the Tribunal making a decision in the matter “on the papers” without the necessity of a hearing.

10. Given the circumstances of this case (including the concessions made by the applicant) the Tribunal considers that it is appropriate to make a decision on the review based on the material before it without holding a hearing.

11. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant satisfies the criteria in l 186.242 of Schedule 2 to the Regulations.

    Requirements relating to the nominated position

14. Clause 186.242 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the visa application relates to a position, as identified in that application, which is either nominated by the employer in accordance with a current labour agreement or, where the nomination was made on or after 18 March 2018, is nominated in the Labour Agreement stream and which identifies the visa applicant in relation to that position.

15. In addition, this criterion also requires that:

    ·if the related nomination was made before 18 March 2018, the labour agreement requirements relating to the application have been met;

    ·the nomination has been approved and not subsequently withdrawn;

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

    ·the position is still available to the applicant; and

    ·the terms and conditions of employment will be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same place.

16. The Tribunal notes that the Cambodian Buddhist Association of Queensland Incorporated (the nominator) made a nomination application for the position of Minister of Religion (Monk) ANZSCO 272211. A nominee of the Department refused that application, and the applicant subsequently lodged an application with this Tribunal for review of that decision. On 11 June 2024 the Tribunal affirmed the delegate’s decision. This means that the position to which the application relates is not the subject of an approved nomination in the Labour Agreement stream.

17. Therefore, cl 186.242 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Labour Agreement 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 Labour Agreement stream have not been met, the decision under review must be affirmed.

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal considers that the applicant has been performing a valuable role in the Cambodian and Buddhist communities as a Monk for the past seven years and that he provides essential community support and religious guidance to members of the Buddhist and Cambodian communities in the Logan City area of Queensland.

20. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.242(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Labour Agreement stream; and

    (b)identified in the application for the grant of the visa.

    (2)     The requirements of the labour agreement have been met in relation to the application.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the employer who made the nomination or a person associated with the employer; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with that employer.

    (5)     The position is still available to the applicant.

    (6)     The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (a)are provided; or

    (b)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.