Phothivanh (Migration)

[2018] AATA 1013

Phothivanh (Migration) [2018] AATA 1013 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chitthakone Phothivanh

CASE NUMBER:  1600221

DIBP REFERENCE(S):  BCC2014/3233058

MEMBER:R. Skaros

DATE:16 March 2018

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 16 March 2018 at 10:41am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement for associated nomination to be approved – Associated nomination not approved  - Request for ministerial intervention – Matter not referred to the Minister

LEGISLATION
Migration Act 1958, ss 65, 351, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cl 186.223

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 23 December 2015 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 for the visa on 27 November 2014. 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 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 because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations as the associated nomination in respect of the applicant was not approved.

6. The applicant appeared before the Tribunal on 22 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the president of the nominator Mr Kham Sirimanotham. The Tribunal hearing was conducted with the assistance of an interpreter in the Laotian/Lao 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

9. The issue in the present case is whether the applicant meets the requirements in cl.186.233.

   Nomination of a position

10. 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii). In addition, this criterion also requires that the nomination has been approved: cl.186.233(3).

11. The applicant was identified in the nomination made by the Wat Lao Buddha Metta Buddhist Society of NSW Inc. It was on the basis of this nomination that the applicant lodged the visa application which is the subject of this review.

12. On 20 November 2015 the above mentioned nomination, which the Tribunal considers is the nomination referred to in paragraph cl.186.233(1), was refused. The nominator applied for review of that decision however on 26 February 2018 the Tribunal affirmed the Department’s decision not to approve the nomination. 

13. At the hearing the Tribunal discussed with the applicant the requirements in cl.186.233 and explained that the outcome of his review depended on the outcome of the associated nomination.

14. On 26 February 2018 the Tribunal affirmed the Department’s decision not to approve the employer nomination by Wat Lao Buddha Metta Buddhist Society of NSW Inc. On 28 February 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments on information relating to the refusal of the associated nomination, which the Tribunal explained is relevant to the requirement in cl.186.233(3) which requires the relevant nomination to have been approved.

15. On 2 March 2018 the representative provided a written response indicating that the applicant has not comment to make on the issue.

16. As the associated nomination has not been approved, the Tribunal finds that the requirement in cl.186.233(3) is not met. Therefore, cl.186.233 is not met.

    Request for referral to the Minister

17. Submissions were received after the hearing in relation to this matter and the related review of the nomination stating that the nominee could not be nominated under a labour agreement as it is restricted to heads of religious orders and he is third in charge. Reference was also made to Mr Sirimanotham’s evidence at the hearing about the nominee being a valued and respected monk by the Lao community in Sydney. A request was made for the Tribunal to consider referring the matter to the Minister.

18. Section.351 of the Act 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 acknowledges the submission that the applicant may not be able to secure a visa under the labour agreement arrangements currently in place for ministers of religion for the reasons explained by the representative. The Tribunal also acknowledges the submissions indicating that the applicant being valued and respected member of the Lao community. However, there is limited information before the Tribunal as to how these factors bring the applicant’s circumstances within the ministerial guidelines for consideration. The Tribunal has decided not to refer the matter. The Tribunal notes however that the applicant can still make a request directly to the Minister where he will have an opportunity to provide supporting information addressing the Minister’s guidelines.

    Conclusion

19. 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

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

    R. Skaros
    Member