Veras Batista (Migration)

[2018] AATA 2611

Veras Batista (Migration) [2018] AATA 2611 (20 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ricardo Veras Batista
Mrs Patricia Passos Veras Batista

CASE NUMBER:  1615437

DIBP REFERENCE(S):  BCC2016/182322

MEMBER:Denise Connolly

DATE:20 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2018 at 11:17am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.233(3)

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 16 September 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 for the visas on 13 January 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 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 Chemical Engineer. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because applicant’s sponsor, GE Oil and Gas Australia Pty Ltd withdrew the related nomination application.

5. The applicants appeared before the Tribunal on 16 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

8. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nomination application made in respect of the applicant, lodged by GE Oil and Gas Australia Pty Ltd, was withdrawn on 2 August 2016 as GE Oil and Gas Australia Pty Ltd advised the Department in writing that it no longer intended to employ the applicant. The delegate found, as the position was no longer available to the applicant, that cl.186.233(5) was not met.

10. Prior to the hearing the applicant provided written submissions acknowledging that GE Oil and Gas Australia Pty Ltd had withdrawn the relevant nomination application but explaining why he believed the business and the migration agent Fragomen (Australia) Pty Ltd had deliberately postponed lodging his permanent residence application causing him significant hardship. He submits that the AAT should change the decision so that justice can be served and there is a positive and fair outcome.

11. At the hearing the Tribunal explained that it had read the applicant’s submissions but that it does not have any power to make a favourable decision unless the requirements of cl.186.233 are met. It explained that, because GE Oil and Gas Australia Pty Ltd has withdrawn the nomination application, the nomination has not been approved by the Minister and therefore cl.186.233(3) is not met and cannot be met.

12. The applicant was very distressed by this information. He explained that he had worked as a Chemical Engineer in Australia and had been granted a Subclass 457 visa to do so. When GE Oil and Gas Australia Pty Ltd sponsored his Subclass 457 visa they promised that they would sponsor his permanent residence application. However they postponed making the permanent residence application for more than a year. They then withdrew the nomination application.  This meant that the applicant lost time and an opportunity to pursue other visa applications, such as a skilled visa. He cannot do this now because he is over 50. He believes GE Oil and Gas Australia Pty Ltd have destroyed his life.

13. The Tribunal has enormous sympathy for the applicants. However as the Tribunal explained to the applicants at the hearing, it does not have any discretion to waive the requirement that the applicant meets cl.186.233. As GE Oil and Gas Australia Pty Ltd has withdrawn the nomination application, the Minister has not approved the nomination. As the nomination application has been withdrawn it now cannot be approved. Therefore cl.186.233(3) is not met. Accordingly the applicant does not satisfy cl.186.233.

14. 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.

    DECISION

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

    Denise Connolly
    Member