Montes Lopez (Migration) - [2018] AATA 101

Montes Lopez (Migration) [2018] AATA 101 (16 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Naymer Levy Montes Lopez
Miss Lina Marcela Rios Giraldo
Master Thomas Montes Rios
Miss Emily Montes Rios
CASE NUMBER:  1709236
DIBP REFERENCE(S):  BCC2016/2227756
MEMBER:R. Skaros
DATE:16 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 16 January 2018 at 4:18pm

CATCHWORDS
Migration – Employer Nomination (Permanent) – Subclass 186 (Employer Nomination Scheme) –Nominated position of ICT Support Technician – Nomination at the time of initial application can be considered by the Tribunal – Department had approved the second nomination – Request to link the visa application to the new nomination – Applicant had made a new Employer nomination declaration – Secondary applicants – Members of the same family unit – Ministerial Intervention sought – Unfair result due to legislative changes – English language proficiency requirement changes
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994 rr 5.19, 5.19(3) Schedule 2 cls 186.223(1) , 186.223, 186.223(2)
CASES
AAT 1508229 (Migration) [2016] AA TA 4122
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2017] FCAFC 104
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 April 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration for the visas on 30 July 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 ICT Support Technician. 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.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the associated nomination was not approved.
The applicants appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal will however refer the matter to the Minister for consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl. 186.223.
Nomination of a position
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. In addition, this criterion also requires the nomination to be approved: cl.186.223(2).
The applicant applied for the visa on the basis of a nomination lodged by Solutechnology Pty Ltd. On 10 March 2017, the Department refused to approve the nomination.
In response to an invitation to comment on the information relating to the refusal of the nomination, the applicant’s representative advised the Department that a new nomination by the same employer for the same position had been lodged with the Department on 7 April 2017. The representative requested the Department to link the visa application to the new nomination. The representative referred to a number of AAT decisions where the Tribunal considered that cl.186.223 may be met if there was a new approved nomination by the same employer for the same position. The delegate considered that they were not bound by AAT decisions and proceeded to refuse the visa application on the basis that the nomination referred to in paragraph 186.223(1) was not approved.
The Tribunal received submissions from the representative, together with a copy of a declaration made by the applicant on 7 April 2017 stating that a new nomination application was lodged, as the previous one had been refused, and that in respect of the required declaration for r.5.19 the applicant wishes to substitute the nomination details listed on the current visa application with the TRN of the new nomination.
In the submission, the representative advised the Tribunal that the Department had approved the second nomination, which was by the same employer for the same position, on 31 October 2017. The representative referred to a number of AAT decisions, in addition to those referred to before the Department, where the Tribunal (differently constituted) found that a subsequent approved nomination can meet the requirements in cl.186.223.
The representative referred to the FCAFC decision of Singh v MIBP [2017] FCAFC 104 (14 July 2017) and to a decision of the AAT 1508229 (Migration) [2016] AA TA 4122. It was submitted that the factual circumstances of this case were different from those in Singh, where the applicant in that case did not have an approved nomination at the time of decision and no further nomination applications had been lodged. It was noted that the applicant in this case, like other favourable decisions by the AAT, had a subsequent nomination approved. It was also submitted that the applicant had made a new r.5.19 declaration in relation to the second nomination. It was stated that the applicants having to lodge a new visa application would cause financial hardship and would be an unreasonable and artificial exercise in light of the subsequent approved nomination.
At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the evidence before it which indicates that the initial nomination, which had been made at the time of his visa application, had been refused. The Tribunal acknowledged the written submissions made regarding the case law and noted the following, that the interpretation of a similarly worded provision in case of Kaur v MIBP [2017] FCCA 564 indicates that it is only the nomination made at the time of application that can be relied on to meet 186.223 and that subsequent nominations, even if approved, could not be relied on. The Tribunal acknowledged that the comments in the Singh case were obiter, but noted that they are particularly persuasive given they are consistent with the current authority in Kaur.
The applicant stated that he had been in Australia for 9 years and had built a life in Australia. He stated that he still holds a 457 visa. The representative indicated that she wished to make comments for the record regarding her dealings with the Department. She stated that the reason the nomination was refused was because she had not received any correspondence from the Department regarding information they required, which she noted was additional information to that which had already been provided. She stated that as a professional lawyer and agent she was aggrieved by the Department’s lack of communication, which has caused enormous hardship for the applicants, as the information required could have easily provided if the Department had made a simple phone call.
The Tribunal has considered the evidence and submissions before it as follows.
The Tribunal acknowledges that a subsequent nomination for the position by the same nominating employer was lodged and has now been approved by the Department. The Tribunal also acknowledges that in the past it considered that a subsequent approved nomination by the same employer for the same position can meet the requirements in cl.186.223(2) as demonstrated by the AAT cases referred to in the submissions. The Tribunal notes however that the cases identified by the representative pre-dated the Singh and Kaur decisions. The AAT case 1508229 (Migration) [2016] AA TA 4122 which the representative suggested post-dated the Singh case was in fact made on 18 July 2016 whereas the Singh and Kaur decisions were handed down in 2017.
In any case, the Tribunal is not bound by other AAT decisions and considers itself bound by the reasoning in Kaur and Singh as discussed above. On current authority, the Tribunal considers that it is the nomination made at the time of the visa application, about which the applicant made the required declaration in the visa application, that must be approved for the requirement in cl.186.223(2) to be met.
The Tribunal has had regard to the applicant’s declaration attempting to substitute the nomination details on the visa application by providing the details of the second nomination. The Tribunal notes however that the declaration provided in the visa application form regarding the nomination was correct at the time it was given and properly referred to the nomination for the position that had been lodged in respect of the visa applicant at that time. In these circumstances, the Tribunal is of the view that any subsequent declarations regarding subsequent nominations cannot alter or substitute the declaration made in the visa application form.
The Tribunal considers that the nomination referred to in cl.186.223(1) is that which had been made at the time of visa application. That nomination was refused by the Department on 10 March 2017. As the relevant nomination has not been approved, the Tribunal finds that cl.186.223(2) has not been met.
The Tribunal acknowledges the grievances made by the representative regarding the Department’s processing of the nomination and considers it unfortunate that the required information was not requested by the Department before a decision was made as this would have overcome the need for the employer to lodge a new nomination.
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.
The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. There is no information before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the visa. As the Tribunal has found that the first named applicant does not meet a criterion for the grant of the visa, the Tribunal must affirm the decision in respect of the secondary applicants as they are not members of the family unit of a person who satisfies the primary criteria for the visa.
Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 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 has had regard to the ministerial guidelines relating to the discretionary power and is of the view that the application of the relevant legislation has led to an unfair result in the applicant’s case. The applicant in this case is now the subject of an approved employer nomination. Prior to the decisions of Singh and Kaur, which are referred to above, the applicant would have been able to rely on the subsequent approved nomination on review as it was the accepted view of the Tribunal that a subsequent approved nomination by the same employer for the same position could meet the requirement of an approved nomination. The recent interpretation of the relevant provisions by the courts however has meant that the applicant could no longer rely on the subsequent approved nomination to succeed in the review.
The applicant and his family hold Subclass 457 visas and while it is open for them to lodge a fresh visa application within 6 months of the subsequent approved employer nomination, the applicant in this case may not be able to meet English language proficiency requirement due to the legislative changes which came into effect on 1 July 2017 which now require all applicants, including those applying in the Temporary Residence Transition stream, to have Competent English. At the time the applicant applied for the visa, the English language proficiency requirement for persons applying under the Transitional stream was Vocational. When applying for the visa, the applicant provided evidence of an IELTS test report indicating that he had achieved Vocational English but not Competent English.
The interpretation of the relevant provision by the courts and the change in legislation during the processing of the review application has, in the Tribunal’s view, led to an unfair result in the circumstances of this case. The Tribunal considers that the applicant’s case comes within the ministerial guidelines relating to the discretionary power and has decided to refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
R. Skaros
Member