Mwongera (Migration)

[2017] AATA 2458

Mwongera (Migration) [2017] AATA 2458 (20 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Susan Karimi Mwongera

CASE NUMBER:  1700827

DIBP REFERENCE(S):  BCC2015/3089491

MEMBER:R. Skaros

DATE:20 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2017 at 2:39pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nominated position – Cook – Employer – standard business sponsor – Barred for 3 months

LEGISLATION
Migration Act 1958 ss 65, 140M(2), 375A
Migration Regulations 1994 r 5.19(3), Schedule 2 cl 186.223(2)

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 3 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 3 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 applicant is seeking the visa in 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 because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of the position in respect of the applicant was not approved.

6. The applicant appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ximena Ovalee, the nominating employer’s representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

   Nomination of a position

9. 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 that the nomination has been approved.

10. The applicant applied for the visa on the basis of a nomination for the position of cook made by the Foundation for Education and Training. Information in the decision record, a copy of which was provided to the Tribunal, indicates that on 1 December 2016 the nomination by the Foundation for Education and Training was refused. As the relevant nomination in relation to the applicant was not approved, the delegate consequently found that the applicant did not meet cl.186.223(2).

11. On review, the Tribunal received a number of documents from the applicant, including copies of correspondence between the Department and the employer regarding the Department’s monitoring of the nominator’s obligations as a standard business sponsor, a copy of the notice of decision under s.140M(2) of the Act to bar the sponsor for three months from making future applications for approval as a standard business sponsor, correspondence inviting the employer to comment on adverse information as part of the processing of the nomination in respect of the applicant, personal documents for the applicant and a copy of the contract of employment.

12. At the hearing the Tribunal discussed with the applicant the s.375A non-disclosure certificate that had been placed on a number of documents in the Department’s file. The Tribunal explained to the applicant that the documents, which it had viewed, appear to be a case summary which in part contained information regarding the status of the monitoring investigation process and issuing of breach notices to the employer. The Tribunal explained to the applicant that it did not consider the documents to be relevant to the issue in the review as it was only concerned with whether the nomination in relation to her by the Foundation for Education and Training had been approved. The applicant stated that her employer had failed to pay her salary for a very short period of time because they had travelled to Spain for holidays. She stated that immigration brought to her attention that the payment was overlooked and the employer promptly paid the outstanding amount. The Tribunal noted that it could not to go behind the reasons for why the nomination was not approved.

13. The Tribunal explained to the applicant that on the evidence before it she does not appear to meet the requirements for the visa as the nomination in relation to her has not been approved. When asked if she wanted to comment on this, the applicant stated that she does not have anything to say about that issue.

14. Ms Ovalee, who represented the nominating employer, gave evidence that there was a lot of misunderstanding of the law and the seriousness of the refusal. She stated that they were given a chance to go to the Tribunal to appeal the refusal of the nomination but decided not to because the breach was so small. She stated that they believe that if they applied to the Tribunal the decision regarding the nomination would have been revoked however they did not lodge the review on time and realised that this caused a problem for the applicant. She stated that the college had been operating for over 47 years and is a reputable organisation. They made an honest mistake and it was unfortunate that it had become so important in the applicant’s case.

15. The Tribunal has had regard to the applicant and Ms Ovalee’s evidence, however as explained to the applicant at the hearing, the Tribunal has no discretion in this matter. There is no provision in the legislation to take into account the reasons for why the nomination was not approved or the reasons for why a review of that decision was not lodged.

16. As the nomination by the Foundation for Education and Training in relation to the applicant by was not approved, the applicant does not meet cl.186.223(2). Consequently, cl.186.223 is not met.

17. 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

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

    R. Skaros
    Member