Vargas (Migration)

[2018] AATA 129

Vargas (Migration) [2018] AATA 129 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaime Oliquino Vargas
Ms Suzanne Rojero Vargas
Mr James Christopher Rojero Vargas

CASE NUMBER:  1609986

DIBP REFERENCE(S):  BCC2015/3148331

MEMBER:Ian Berry

DATE:31 January 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 31 January 2018 at 1:30pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Age of applicant – Occupation or position – Annual earnings

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 186.221, 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 Immigration on 14 June 2016 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 to the Department of Immigration for the visas on 27 October 2015. 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 (the 2^nd and 3^rd applicants), 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 3 alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the review applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Senior Field Technician. 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 visas because the review applicant did not meet cl.186.221(a) of Schedule 2 to the Regulations because this applicant was born on 11 January 1965 who, having lodged his visa application on 27 October 2015, was over 50 years of age.  The applicant did not come within the exceptions as stipulated in clause 186.221(b) as detailed in instrument IMMI 15/083.  Therefore, as clause 186.221was not satisfied, the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa were not satisfied.  Consequently, as to the 2^nd and 3^rd applicants, were not members of a family unit of a person who holds a 186 visa, and made a combined application with the review applicant, did not satisfy cl. 186.311, and their applications were refused.

6. The review applicant and the 2^nd applicant (the daughter of the review applicant) appeared before the Tribunal on 5 October 2017 to give evidence and present arguments.  Both gave evidence at the Tribunal hearing.  The applicant’s migration agent set out a submission to be relied upon at this hearing, and if the applicants were unsuccessful the hearing to be used in appealing to the Minister and seeking his intervention[1]. Further, the review applicant’s employer supported his application by stating his contribution and value he brought to their organisation[2].

   [1] T1, 50-51

   [2] T1, f. 53

7. The submission on the applicant’s behalf informs the Tribunal of the visa applicant being nominated twice by his employer.  The first nomination by the review applicant’s employer was lodged on 5 August 2014 and approved on 25 February 2015 which at that time the visa applicant had turned 50 years of age.  What the visa applicant did not know was that he could have lodged his RN 186 visa application after lodgement of the employer’s nomination before his 50^th birthday.  The second nomination by the visa applicant’s employer was approved on 22 September 2015.  The visa applicant had by then turned 50 years of age. 

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in the present case are firstly, whether the review applicant was more than 50 years of age when he made his 186 application; secondly, if so, did he fit within a class of persons who are exempt from the age provision - cl. 186.221(b).

11. At the time of the visa application being made, an applicant who was in the Temporary Residence Transition stream must either not have turned 50 years of age, or be in a class of persons specified in legislative instrument IMMI 15/083: Cl.186.221(b).

12. In the present case the applicant was aged 50 years at the time of application. This fact was readily conceded by the review applicant and his migration agent.

    Did the Review Application come within an exception to the age restriction?

13. The relevant clauses and classes in IMMI 15/083 are considered as follows:

    a.Clause 6: Class 5:  The review applicant was not employed as a researcher, scientist or technical specialist at an ANZSCO level of 1 or 2 where the occupation or position was nominated by an Australian scientific government agency.  The visa applicant was not a senior academic who had applied for a visa under the Regulations to occupy a position as nominated by any Australian university in Australia.

    b.Clause 7: Class 6: This class 6, contains two limbs – Firstly, the review applicant had been working for his nominating employer as the holder of a subclass 457 – Temporary Work (Skilled) visa, before applying for his subclass 186 visa.  The visa applicant was the holder of the subclass 457 visa from 15 November 2011 to 15 November 2015.  However as his Permanent Employer-Sponsored or Nominated Visa Application[3] was lodged on 27 October 2015, his 457 visa period of four years fell short by 19 days. The second limb was that his annual earnings for each year in that 4-year period were to be in any year equivalent to the Fair Work High Income Threshold (FWHIT). His annual income was not equal or above the FWHIT in any relevant year.

    c.The review applicant was not a medical practitioner and therefore clauses. 7(b) and 7(c) were irrelevant as exemptions.

    [3] D1, 166-191

14. The visa applicant conceded that in respect of the above classes, he could not offer any evidence to indicate his coming within one of the exceptions.

15. Therefore, cl.186.221 is not met.

16. The 2^nd and 3^rd named applicants are the children of the applicant.  Clause 186.311 provides that if the 2^nd and 3^rd named applicants as  members of a family unit of a person who holds a subclass 186 visa grant on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant then their application would be successful.  However, the 1^st named applicant has not been successful and therefore the 2^nd and 3^rd named applicants do not come within clause 186.311, their applications cannot succeed.

    DECISION

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

    Ian Berry
    Member