Reilly (Migration)

[2020] AATA 4840

Reilly (Migration) [2020] AATA 4840 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Steven James Reilly

CASE NUMBER:  2002191

HOME AFFAIRS REFERENCE(S):          BCC2016/2227506

MEMBER:Warren Stooke AM

DATE:6 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2020 at 5:58pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – ANZSCO Code: 225113 – no approved nomination – sponsor’s previous application for review – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 186.223, rr 1.13A, 1.13B

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 Home Affairs on 18 January 2020 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 30 June 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 Labour 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 Marketing Specialist - 225113.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 12 December 2019, the nomination lodged by SEARCH RANK RESULTS PTY LIMITED, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister.

6. The applicant appeared before the Tribunal on 5 November 2020 to give evidence and present arguments.

7. The applicant stated that he understood the visa application was refused because the company (Search Rank Results Pty Limited) was not sustainable for the two year period, but the company was still trading and profitable.

8. The applicant confirmed to the Tribunal that he provided the Tribunal with a copy of the delegate’s decision with his application for review.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved sponsored position for the nominated occupation of Marketing Specialist – ANZSCO Code: 225113 to satisfy Subclass 186 visa as set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

12. The applicant provided evidence that he has maintained a continuity of employment with Search Rank Results Pty Limited (the nominating sponsor) where he is still employed.

13. The applicant advised the Tribunal that the Department refused the employer nomination on 4 June 2019 that claimed the nominee was offshore.

14. The applicant stated that this finding in the nominating sponsor’s decision was incorrect and that he had left the country for a visit to the UK and then returned to Australia and was not offshore, as contended in the decision of the Department.

15. The Tribunal notes that the Department file contains a decision of 31 May 2019 relating to Search Rank Results Pty Ltd – Case No 1935964, which contains the following:

    “Departmental record show that the nominee, Mr Steven James Reilly is overseas since 13 January 2017.

    Applicant has provided a Letter of support dated 19/06/216 by Mr Sunil Harding, National Sales Manager which states:

    'We are pleased to confirm your existing contract of employment with us for the next 2 years with the further possibility of renewal'

    As nominee, Mr Steven James Reilly has been overseas since 13 January 2017, he has not demonstrated a full time employment with the nominator since 13 January 2017, and therefore the nomination does not meet Regulation 5.19(3)(d)(i).

    As the Regulation 5.19(3)(d)(i) is not met, the nomination does not meet 5.19(3).

    As the nomination does not meet 5.19(3) of the Regulations, the nomination has failed to meet all the criteria for nomination of an Employer Sponsored Nomination (EN 186N).

    Therefore, I refuse SEARCH RANK RESULTS PTY LIMITED’s nomination for Employer Sponsored Nomination (EN 186N) lodged on 30/06/2016 referring to Mr Steven James Reilly as the nominee."

16. The applicant stated that the Department subsequently refused the nomination of Search Rank Results Pty Ltd on the basis that the sponsor was not deemed to be financially capable of supporting the position, despite the applicant having had continuous employment to the present time. In this regard, the Tribunal notes that the Department file contains a decision of 19 December 2019 relating to Search Rank Results Pty Ltd that refused the nomination of the position of Marketing Specialist – ANZSCO Code: 225113 with the nominee being identified as Mr Steven James Reilly, the applicant.

17. The Tribunal notes that on 18 August 2020, the Tribunal considered the review of the nominating sponsor’s application, wherein a response to an application to furnish information was not provided by the advised date and the Tribunal affirmed the decision of the delegate.

18. The applicant stated that the representative had provided advice that he should await the decision of his own appeal and that the information already submitted in relation to the nominating sponsor had not changed.

19. At this juncture, the Tribunal explained to the applicant that cl.186.223 requires that the applicant should have an approved sponsor for the nominated position.

20. The applicant confirmed in evidence to the Tribunal that he did not have an approved sponsor for the nominated position.

21. The applicant expressed anxiety concerning his plight and asked the Tribunal for advice, concerning his available options. The Tribunal responded that it was not the role of the Tribunal to provide advice and that pending the decision of the Tribunal the information notes attached to a decision will provide guidance, including where appropriate, appeal rights.

22. The Tribunal informed the applicant that he had rights to pursue any complaints against his migration agent through OMARA.

23. The Tribunal informed the applicant that s351 of the Migration Act 1958 (the Act) provides for an applicant to refer the matter to the Minister for consideration.

    Nomination of a position

24. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

25. 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.

26. Based upon the evidence, the Tribunal is satisfied that the applicant does not have an approved nominated position for the occupation of Marketing Specialist – ANZSCO Code: 225113 and thereby does not satisfy the requirements of cl.186.223(1).

27. Therefore, cl.186.223 is not met.

28. 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.

29. Whilst the applicant has not requested the Tribunal to consider a Ministerial reference, the Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >

    The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

    DECISION

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

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.