Summan (Migration)

[2019] AATA 2401

Summan (Migration) [2019] AATA 2401 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Light Summan
Mrs Trisha Leann Summan
Master Noah Summan
Master Micah Summan

CASE NUMBER:  1710912

HOME AFFAIRS REFERENCE(S):           BCC2016/3303530

MEMBER:R. Skaros

DATE:17 April 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 17 April 2019 at 8:34am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Podiatrist – no approved nomination – nomination review application withdrawn – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 8 May 2017 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 5 October 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Podiatrist with Fixfeet 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 as the nomination of the position in respect of the applicant was not approved.

6. The applicants appeared before the Tribunal on 14 March 2019 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 relevant nomination has been approved.  

   Nomination of a position

9. 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.

10. The applicant applied for the visa on the basis of a nomination made by Fixfeet Pty Ltd. That nomination was refused by the Department on 6 April 2017. Fixfeet Pty Ltd applied for review of the nomination, however, on 3 February 2019 they decided to withdraw the application for review. 

11. On 7 February 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the nominator withdrawing the application for review of the decision not to approve the nomination.  The Tribunal noted that, in the circumstances, the nomination of the position has not been approved and that this was relevant to the requirement in cl.186.223(2) which requires the relevant nomination to be approved.

12. The Tribunal received a response from the applicant together with a substantial number of documents, including a copy of employment contracts, letters of support for the applicant and his family and copies of correspondence and documents relating to an action against the nominating employer (Fixfeet Pty Ltd) for non-payment of employee entitlements to the applicant during his employment.  

13. At the hearing the Tribunal discussed with the applicant the evidence before it which indicates that the nomination was withdrawn by the employer and explained that in the circumstances he did not meet requirement in cl.186.223(2) which requires the nomination to be approved. In response, the applicant gave evidence about his employment with the nominator and stated that he had been underpaid by his employer, whom he indicated had not complied with the national employment standards, due to non-payment of leave entitlements. The applicant gave evidence that he had filed a complaint with the Fair Work Ombudsman and is pursuing a claim to recover his entitlements. After some discussion about the requirements and the powers of the Tribunal, the applicant indicated that he understood he could not succeed in this review given the decision by his employer to withdraw the review of nomination.

14. The Tribunal acknowledges the matters raised by the applicant regarding his employment with the nominator, however, as explained to the applicant at the hearing, employment related disputes are not matters over which this Tribunal has jurisdiction. The issue before the Tribunal relates to whether the relevant nomination has been approved. The evidence in this case, which is not in dispute, is that the nomination has been refused and the review of that refusal has since been withdrawn. The relevant nomination has not been approved. Therefore, cl.186.223 is not met.

15. 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.

16. The secondary applicants applied for the visas on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

17. 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.