RICHARDS (Migration)

[2019] AATA 2940

RICHARDS (Migration) [2019] AATA 2940 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr GEORGE RICHARDS
Mr GEORGE DEAN RICHARDS

CASE NUMBER:  1816823

HOME AFFAIRS REFERENCE(S):           BCC2017/1658776

MEMBER:R. Skaros

DATE:26 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 26 March 2019 at 3:08pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Corporate General Manager – subject of an approved nomination – nomination application refused – no pending application for review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), 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 Home Affairs on 24 May 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 May 2017. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Corporate General Manager with Sealtek Pty Ltd.  

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination made by Sealtek Pty Ltd was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 16 April 2018.

7. On 6 December 2018, the Tribunal wrote to the applicant noting that the nomination of the position has not been approved and requesting the applicant provide information as to whether the relevant nomination has been approved or if there is a pending application for review of the decision not to approve the nomination. The applicant’s representative sought an extension of time to respond, which the Tribunal allowed. On 14 January 2019, the Tribunal received email correspondence from the representative together with financial documents for Sealtek Pty Ltd. It was submitted that the applicant seeks referral to the Minister on the basis that the nominator is actively and lawfully operating a business and that Australia would economically benefit from the applicant remaining in Australia.

8. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination has been approved.

    Nomination of a position

11. 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. In addition, this criterion also requires that the nomination has been approved.

12. The applicant applied for the visa on the basis of an employer nomination made by Sealtek Pty Ltd in which he was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the Department refused to approve the associated nomination on 16 April 2018. There is no evidence before the Tribunal which indicates that the decision to refuse the nomination has been revoked or set aside on review.

13. At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the information before it which suggests he does not meet that requirement. In response, the applicant provided details of his family’s personal circumstances and the illness of his father in law who has since passed away. He stated that for these personal reasons he was absent from the company and was not able to provide the requested information. The applicant then provided details about the operations of the nominator’s business. He gave evidence that it has taken a long time to build the company, which is now operating profitably, has a good reputation and has a number of employees. The applicant stated that he would like to remain in Australia to continue to operate the company. He stated that he could provide further documents relating to the nominating business.

14. The Tribunal explained to the applicant that the nomination application and visa application were different applications and that the Tribunal only had the decision in respect of the visa refusal before it. The Tribunal noted that the evidence before it indicates that the nomination was refused by the Department and he has not provided any information or evidence to indicate that a review of that decision has been lodged and that, in these circumstances, the Tribunal has no power in respect of the nomination decision. The applicant asked for clarification on the nomination and visa application process, which the Tribunal attempted to explain.

15. The Tribunal also discussed with the applicant the representative’s submission regarding the request for the Tribunal to refer the matter to the Minister. The applicant reiterated that he was overseas due to personal circumstances but has now returned to manage the business.

16. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. However, it has no power to consider the issues relating to the nomination or the applicant’s personal circumstances. The only matter before the Tribunal is that which relates to the visa refusal. Without evidence of an approved nomination, the review cannot succeed. In this case, the associated nomination was refused, it follows that the applicant cannot satisfy cl.186.223(2). Therefore, cl.186.223 is not met.

17. 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.

18. The secondary applicant is a member of the first named applicant’s family unit. As the first named applicant does not meet the requirement for the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

19. The Tribunal has considered the request to refer the matter to the Minister pursuant to s.351, but has decided not to do so. The Tribunal nevertheless notes that the applicants can still make a request directly to the Minister.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    R. Skaros
    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.