Martin (Migration)

[2018] AATA 1927

Martin (Migration) [2018] AATA 1927 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew Kevin Martin
Mrs Jacqueline Lesley Martin
Ms Rebekka Louise Martin
Mr Ryan Anthony Martin

CASE NUMBER:  1712705

DIBP REFERENCE(S):  BCC2017/374643

MEMBER:Saxon Rice

DATE:26 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 26 March 2018 at 4:29pm

CATCHWORDS

Migration – Employer Nomination Scheme – Subclass 186 – Temporary Residence Transition stream – Production Manager (Manufacturing) – Age requirements not met – Not a class of specified persons – Request for Ministerial intervention via Tribunal – Tribunal declined to refer the matter to Minister

LEGISLATION
Migration Act 1958, ss 65, 345, 351, 391, 417, 454, 501J
Migration Regulations 1994, Schedule 2, cl 186.221, 186.311

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 and Border Protection on 13 June 2017 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 for the visas on 28 January 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Production Manager (Manufacturing) (ANZSCO 133512)’ (Operations Manager at Vector Aerospace). 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 visas because the applicant did not meet cl.186.221 of Schedule 2 to the Regulations because the department was not satisfied that the applicant met the age requirements or that he was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

6. The applicants appeared before the Tribunal on 15 March 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Age requirements

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either not have turned 50, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.186.221.

10. In the present case the applicant was aged 53 years at the time of application.

11. Given the applicant’s age at the time of application, the Tribunal has considered whether the applicant is in a class of specified persons. However, the applicant is not a researcher, scientist or technical specialist nominated by an Australian scientific government agency, he is not an academic nominated by an Australian university or a medical practitioner.

12. As the visa application was made when the applicant had been working for his nominating employer for approximately three years and nine months, the applicant is also unable to satisfy the remaining class of persons who have been working for the nominating employer as the holder of a subclass 457 visa for at least four years immediately before applying for the Subclass 186 visa.

13. At the Tribunal hearing, the applicant and his representative acknowledged that the applicant does not satisfy the necessary criteria for the grant of the visa.

14. The Tribunal notes the applicant’s explanation that, following the visa application, he realised that he did not meet the necessary criteria for the subclass 186 visa and lodged a second subclass 457 visa application. However, following the changes to the skilled occupations list made by the Australian Government in April 2017, the applicant’s nominated occupation was removed from the list as a skilled occupation. As a result, the applicant said he withdrew his second subclass 457 application. The applicant said that his nominated occupation of ‘Production Manager (Manufacturing)’ (ANZSCO 133512) was then returned to the list of skilled occupations but at that time, he was no longer eligible to make another onshore visa application.

15. Therefore, as the applicant is over the age of 50 and he is not in a class of persons specified in the relevant instrument, cl.186.221 is not met.

    CONCLUSION

16. 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.

17. To meet clause 186.311 the applicant’s spouse and children, the second, third and fourth-named applicants (the ‘secondary applicants’), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa.

18. As the applicant does not satisfy the primary criteria for a subclass 186 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visa.

    Ministerial intervention

19. The applicants and their representative have requested the Tribunal give consideration to referring the case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.

20. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more of a number of unique or exceptional circumstances.

21. The Tribunal notes the applicant’s circumstances when making his visa applications in early 2017 as outlined above. At the Tribunal hearing, the applicant’s representative referred to the contribution the applicant has made to the business of his sponsoring employer and the importance of the applicant’s role to the training of apprentices as reasons to support a referral for ministerial intervention.

22. The Tribunal provided the applicant with time following the Tribunal hearing to make a submission in relation to these matters. The applicant’s representative requested five business days to make the submission and the Tribunal granted six business days to Friday 23 March 2018 (inclusive). The Tribunal notes that the applicant’s representative telephoned the Tribunal Registry regarding an extension of time to provide information. The applicant’s representative was advised by the Tribunal Registry to make any request in writing for consideration. At the time of decision, no further information has been provided to the Tribunal. Accordingly, the Tribunal makes its decision based on the information it has before it.

23. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.

24. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Saxon Rice
    Member