Ninsamak (Migration)

[2017] AATA 2471

Ninsamak (Migration) [2017] AATA 2471 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirachon Ninsamak

CASE NUMBER:  1701598

DIBP REFERENCE(S):  BCC2016/563991

MEMBER:Denise Connolly

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 8:28am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination refused by delegate – No approved nomination at time of decision

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 5.19, Schedule 2, cl 186.233

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 25 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 8 February 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 the applicant. 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 the Direct Entry stream, to work in the nominated position of Minister of Religion. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the associated nomination was not approved.

6. The applicant appeared before the Tribunal on 25 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. 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

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that the nomination application lodged, being the nomination referred to in cl.186.233(1), was refused by the delegate on 7 December 2016. Accordingly the delegate found that cl.186.233(3) was not met.

12. At the hearing the Tribunal explained the requirements of cl.186.233. The representative confirmed that it was understood that the applicant could not meet cl.186.233. However the applicant had been given poor advice by a migration agent, Ms Jaruwan Tangsilsat, who has since had her registration suspended by MARA for 12 months. In the circumstances the representative will be assisting the applicant to seek Ministerial intervention.

13. There is no evidence before the Tribunal to indicate that the nomination application associated with the position has been approved. Accordingly cl.186.233(3) is not met.

14. Therefore, cl.186.233 is not met.

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

    DECISION

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

    Denise Connolly
    Member