Pitaksakseree (Migration)

[2018] AATA 3390

Pitaksakseree (Migration) [2018] AATA 3390 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Punjapol Pitaksakseree

CASE NUMBER:  1618115

DIBP REFERENCE(S):  BCC2016/1399997

MEMBER:Bridget Cullen

DATE:30 July 2018

PLACE OF DECISION:  Brisbane

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

STATEMENT MADE ON 30 JULY 2018 AT 11:25AM

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(3), 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 11 October 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 for the visa on 8 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 Temporary Residence Transition stream, to work in the nominated position of Beauty Salon Manager. 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.186.233 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, Pitaksakseree Pty Ltd was refused by the Department, as such there was no approved nomination.

6. On 14 February 2018, the applicant attended a hearing with the Tribunal to give evidence and present arguments. The applicant was assisted by a NAATI Level 2 interpreter in the Thai and English languages throughout the hearing.  The applicant was represented in relation to the review by a registered migration agent, who attended the hearing.

7. 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

8. 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.

9. 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.

10. Pitaksakseree Pty Ltd’s nomination application was refused by the Department and that decision was affirmed by the Tribunal on 11 July 2018.

11. On 13 July 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

12. The particulars of the information were that on 11 July 2018, the Tribunal affirmed the decision by the Department to refuse the nomination made by, Pitaksakseree Pty Ltd, meaning that the nominator's application for the nominated position has not been approved.

13. It was explained in the letter to the applicant that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and, if it made this finding, the Tribunal would have no alternative other than to affirm the decision under review.

14. The invitation also specifically stated that the Tribunal must receive the applicant's comments / response, or any request for an extension of time in which to do so, by 27 July 2018.

15. The applicant has not replied to the Tribunal’s invitation.

16. As the nomination application for the position to which the applicant’s Subclass 186 visa application relates has not been approved, cl.186.223 of Schedule 2 to the Regulations is not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Transitional Residence 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

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

    Bridget Cullen
    Member