Murray (Migration)

[2018] AATA 5766

Murray (Migration) [2018] AATA 5766 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Catherine Anne Murray
Mr Steven Michael Taylor

CASE NUMBER:  1716828

HOME AFFAIRS REFERENCE(S):           BCC2016/3925356

MEMBER:Alison Mercer

DATE:11 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2018 at 11:03am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – nomination withdrawn – employer went into administration – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 187.233

CASES
Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105

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 26 July 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 22 November 2016. 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) applied for the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(1) of Schedule 2 to the Regulations as she was not the subject of an approved nomination by an Australian employer. The delegate found that the applicant’s employer, Acquire Learning Pty Ltd, had withdrawn its nomination of her on 14 June 2017. The delegate also refused to grant the second named applicant (the applicant’s partner) a subclass 186 visa on the basis that he did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that he met the primary visa criteria in his own right.

6. The Tribunal received a review application on 2 August 2017 from the applicants, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Simone Dickenson, as their representative and authorised recipient for correspondence.

7. The applicants appeared before the Tribunal on 8 November 2018 to give evidence and present arguments.

8. The applicant told the Tribunal that her nominating employer, Acquire Learning Pty Ltd, went into administration after she and her partner had lodged their subclass 186 Temporary Residence Transition stream visa applications based on her nomination by that employer. That was the reason that the employer withdrew its nomination of her in June 2017. She further explained that she was unable to find another employer as, by then, her original subclass 457 visa had expired.

9. The applicants told the Tribunal that this was an unexpected and distressing development but that they currently had put in expressions of interest for a subclass 189 and a subclass 190 visa. The applicant had obtained a skills assessment for her occupation and they had calculated that they should be entitled to the required points for either visa subclass. They lodged their expressions of interest a week ago but had not been given a lot of information about when they could anticipate receiving an invitation from the Department to apply for one or both visa subclasses. The applicants told the Tribunal that in the meantime, they had both been head-hunted by other Australian employers but were unable to proceed with these avenues due to their unresolved visa status. They stressed that they were anxious to be able to apply for the subclass 189 or 190 visa, and to not lose their permission to work in the meantime.

10. The Tribunal discussed with the applicants its duty to make a timely decision on the visa applications under review, and that it would not normally defer doing so simply because the applicants might make another visa application in an unrelated category. However, it agreed to defer its decision until 22 November 2018 to enable their agent, who did not attend the hearing, to make any further submissions on their behalf.

11. 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

12. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

13. 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.

14. As noted in the delegate’s decision, and acknowledged by the applicant in the hearing, the applicant’s employer, Acquire Learning Pty Ltd, withdrew its nomination of the applicant on 14 June 2017. There is no evidence before the Tribunal that that employer lodged another nomination.

15. It is a requirement for the Temporary Residence Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

16. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

17. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.  

18. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

19. Accordingly, the Tribunal must find that cl.186.223(1) is not met, and therefore cl.186.223 is not met as a whole. This means that the applicant does not meet the criteria for a subclass 186 visa.

20. 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.

21. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 186 visa, as it finds that he does not meet the secondary visa criteria in cl.186.311 to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to suggest that he meets the primary visa criteria in his own right.

    DECISION

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

    Alison Mercer
    Member

    
    

    ATTACHMENT A

    186.223(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    Either:

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

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

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

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.