Thorne (Migration)

[2021] AATA 5357

Thorne (Migration) [2021] AATA 5357 (17 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr William Denton Thorne
Mrs Chelsea Elizabeth Disisto
Mr Denton Thomas Thorne

CASE NUMBER:  1829755

HOME AFFAIRS REFERENCE(S):          BCC2017/4191488

MEMBER:Peter Emmerton

DATE:17 November 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 17 November 2021 at 9:46am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Minister of Religion – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls. 186.233, 186.311

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 4 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 November 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Minister of Religion, ANZSCO 272211, Skill level 1.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the nomination was not approved.

6. The applicant appeared before the Tribunal, via video, on 2 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Darvodelsky and Mr Rodney Scott, representing the nominating entity, Sydney Church of Christ. This was combined with the hearing for MRT file reference 1827338, the nominator.

7. The applicants were represented in relation to the review by their 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 nomination has been refused.

   Nomination of a position

10. On 10 May 2017, the applicant’s sponsoring employer, Sydney Church of Christ applied for approval for a nomination for the position of Minister of Religion, ANZSCO 272211. Mr William Denton Thorne is the nominee for the position.

11. On 29 August 2018 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(i)(A) of the Regulations.

12. In a separate decision, the Department refused Mr William Denton Thorne’s subclass 186 visa application because the nomination was not approved.

13. The nominator, Sydney Church of Christ and the visa applicant, Mr William Denton Thorne each applied to the Tribunal to review the Department’s decisions.

14. On 2 November 2021 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Sydney Church of Christ for the position of Minister of Religion ANZSCO 272211.[1]

    [1] 1827338

15. On 2 November 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by Sydney Church of Christ.

16. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, they cannot satisfy the provision at clause 186.233 of Schedule 2 of the Migration Regulations.

17. The applicant was advised that if they cannot satisfy cl.186.233 the Tribunal would affirm the decision of the Department of Immigration and Border Protection refusing the visa.

18. The applicant was invited to provide a written response by 16 November 2021. The letter advised the applicant that, ‘If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

19. The applicant did respond to the Tribunal’s s.359A letter on 16 November 2021. They provided a substantial submission to the Tribunal containing in excess of 80 personal and professional references and letters of support for the visa applicants. Their financial capacity to support themselves and the willingness of their current employer to financially support them was clearly demonstrated. They expressed detailed concerns regarding the impact upon their Church should they need to leave Australia. In addition, the personal impact upon all members of the family should they be forced to return to the USA was explained.

20. As the visa applicants had previously expressed in the hearing, they again acknowledged that it was not within the powers of the Tribunal to grant the visas under review, as there was no discretionary power available to it. They once again requested that the Tribunal refer their case to the Minister for review and potential Ministerial Intervention. The Tribunal has chosen to not refer the matter, however, as was explained during the hearing, the applicants are entitled to seek Ministerial intervention themselves.

21. The Tribunal has not sought additional information as it is clear the applicant cannot satisfy an essential criterion as the nomination is not approved.

    Nomination of a position

22. Clause 186.233 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 Direct Entry 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.

23. 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.

24. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 186.233(3) of Schedule 2 of the Regulations.

25. Therefore, cl.186.233 is not met.

26. 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.

27. Secondary applicants

28. The Tribunal has determined that the secondary applicants, Ms Chelsea Elizabeth Disisto and Mr Denton Thomas Thorne, are not members of a family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of having satisfied the primary criteria for a Subclass 186 visa.

29. The secondary applicants therefore do not satisfy the requirements of cl.186.311

30. The secondary applicants have 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, as a secondary applicant have not been met, the decision under review must be affirmed.

    DECISION

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

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.