Ong (Migration)

[2017] AATA 2467

Ong (Migration) [2017] AATA 2467 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jelyn Ong

CASE NUMBER:  1616251

DIBP REFERENCE(S):  BCC2016/1430211

MEMBER:R. Skaros

DATE:28 July 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 November 2017 at 12:19pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Registered Nurse (Aged Care) – Requirement to have skills assessed as suitable by relevant assessing authority at time of application – Australian Nursing and Midwifery Accreditation Council - Applicant provided Certificate of Registration from Nursing and Midwifery Board of Australia – Certificate provided not from assessing authority – No valid assessment at time of application

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 186.234

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 27 September 2016 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 12 April 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 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 Registered Nurse (Aged Care) - 254412. 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 because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because at the time of application the applicant’s skills had not been assessed as suitable for the occupation by the specified assessing authority. The delegate was also not satisfied that the applicant was an exempt person as specified in the relevant instrument.

6. The applicant appeared before the Tribunal on 13 November 2017 to give evidence and present arguments.

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 in cl.186.234.

   Skills assessment and prior employment

9. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

10. For this criterion, the relevant class of exempt persons has been specified in IMMI 15/083. The Tribunal acknowledges that the current instrument (IMMI 17/058) specifying the classes of exempt persons indicates that the instrument applies to 186 visa applications that have not been finally determined. The Tribunal notes however that cl.186.234 states that it is a time of application requirement and as such considers that the relevant instrument is that which applied at the time of application. In any case, having considered the classes of persons specified in both instruments, the Tribunal is satisfied that the applicant does not come within any of the classes of exempt persons in either instrument.

11. The applicant indicated that she was nominated by Palms Aged Care for the position of Registered Nurse and that her base salary was $76,000. The Tribunal accordingly finds that she was not nominated by an Australian government agency in the following occupations: researcher, scientist and technical specialist at ANZSCO skill levels 1 or 2. She was not nominated by an Australian university in Australia. She did not hold a Subclass 444 or 461 visas. Her nominated earnings will not be at least equivalent to the current ATO top individual income tax rate, which is $180,001.

12. Given the above, the Tribunal finds that the applicant was not in a class of persons specified in the relevant instrument. The applicant therefore does not satisfy cl.186.234(3) and must have had her skills assessed as suitable by the relevant assessing authority at the time of application.

13. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 16/060. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

14. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

15. The relevant instrument specifies the Australian Nursing and Midwifery Accreditation Council (ANMCC) as the relevant assessing authority for the occupation of Registered Nurse (Aged Care). With the application, the applicant provided a copy of her Certificate of Registration as a Registered Nurse (Division 1) issued by the Nursing and Midwifery Board of Australia. While the Tribunal acknowledges that this certificate indicates that the applicant has the skills to work as a nurse in Australia, unfortunately the NMBA was not the assessing authority specified for the nominated occupation. The applicant therefore cannot rely on her registration certificate to meet the requirements.

16. The applicant has provided to the Tribunal evidence of a suitable skills assessment issued by ANMAC however that assessment is dated 17 February 2017 which is after the date of application. The applicant confirmed at the hearing that she did not have a skills assessment from ANMAC at the time she lodged her visa application and explained that it was because she had lodged the application herself and did not fully understand the requirements.

17. The Tribunal acknowledges the reasons for why the applicant did not have a suitable skills assessment from the relevant assessing authority at the time of application however the Tribunal has no discretion in this matter.

18. Clause 186.234 requires the applicant to have had her skills assessed a suitable from the relevant assessing authority at the time of application. As the applicant’s skills were not assessed until after the date of application she is unable to meet the requirements in cl.186.234(2).

19. As the applicant does not meet cl.186.234(2) or (3), she is unable to satisfy cl.186.234(1). Therefore, cl.186.234 is not met.

20. 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

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

    R. Skaros
    Member