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austlii:cth/MRTA/2004/625
defendant. The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Employer Nomination (Residence) (Class BW) visas.
The Migration Review Tribunal upheld a decision to refuse permanent residence visas to a Chinese family under the Employer Nomination Scheme. The key problem was that the employer's nomination of the father for a construction supervisor position had been refused, and the Tribunal agreed with that refusal. Because the nomination was not 'approved', the family could not meet an essential legal requirement (regulation 856.221) for the visa. Without this requirement being met, the visa application had to be refused regardless of other circumstances.
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CATCHWORDS: Review of visa refusal - Subclass 856 (Employer Nomination Scheme) - approved appointment
DECISION: The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Employer Nomination (Residence) (Class BW) visas.
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mr Shu Lin WANG (the visa applicant), a national of the People's Republic of China, born on 19 May 1955, applied, with his wife Zhi Fang WANG born 9 March 1965 and son Cheng WANG born 24 May 1991, (the secondary visa applicants) for Employer Nomination (Residence) (Class BW) visas on 28 October 2002 (D1, f.18-26). The delegate decided to refuse to grant the visas on 20 February 2003 (D1, f.124-133).
2. The visa applicants lodged applications for review with the Tribunal on 5 March 2003 (T1, f.1-7). The decisions are reviewable by the Tribunal and the applications for review were properly made, and combined at lodgement, by persons with standing to apply for review.
3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
5. Generally, where members of the same family unit have applied for visas together, at least one of the visa applicants must meet the `primary criteria' for the visa. The other applicants need only meet the `secondary criteria'.
6. The criteria and policy immediately relevant to this review are:
Part 856 of Schedule 2 to the Regulations
PAM 3: Schedule 2, part 856
7. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
T2 - MRT case file V03/01223, folio numbered 1-188.
D1 - Departmental case file CLF2002/56403, folio numbered 1-135.
D2 - Departmental case file OPF2002/9933, folio numbered 1-39.
9. The visa applicant first entered Australia on 4 November 1998 on a Short Stay (Visitor) (Class TR) visa, subclass 676 (Tourist (Short Stay)) and has not left Australia since. On 27 January 1999 he was granted a Long Stay (Visitor) (Class TN) visa, subclass 686 (Tourist (Long Stay)) valid for stay until 4 May 1999. He was granted a Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay)) on 6 July 2000 that was valid until 6 July 2002. On 10 September 2002 he was granted a further subclass 457 visa valid until 10 September 2004. The secondary visa applicants are also in Australia on subclass 457 visas valid until 10 September 2004.
10. The application made on 28 October 2002 for Employer Nomination (Residence) (Class BW) visas was accompanied by an application for approval of a nominated position by Darrall Gibson & Sons Pty Ltd. The position was for a Supervisor (Construction) at a salary of $42,000. The visa applications were made on the basis that the visa applicant would be employed in this position.
11. A number of personal documents relating to the primary visa applicant were lodged with the Department including: qualification as a welder (D1, f.1-7), management qualification (D1, f.8-9), appointment as an engineer (D1, f.10), and curriculum vitae (D1, f.61-62).
12. On 8 January 2003 the employer nomination application was refused (D2, f.34-38). The delegate wrote to the primary visa applicant on the same day advising him that the employer nomination had been refused and that he would not satisfy regulation 856.221 (D1, f.108). The primary visa applicant's representative responded on 14 February 2003 advising the delegate that an application for review of the employer nomination decision had been lodged with the Tribunal and requesting that a decision not be made on the visa applications until after the Tribunal's decision (D1, f.109). The visas were refused on 20 February 2003 (D1, f.124-133). The delegate stated that the visas were not granted on the basis that regulation 856.221 was not met.
13. A combined hearing was held on 12 November 2003 at which the visa applicant gave formal evidence on his own behalf and Mr Steve Gibson a director of Darrall Gibson & Sons Pty Ltd the nominating company gave evidence on behalf of the company.
14. At the time the visa applications were lodged, Employer Nomination (Residence) (Class BW) contained two subclasses: subclass 856 (Employer Nomination Scheme) and subclass 857 (Regional Sponsored Migration Scheme). The only subclass in respect of which any claims have been advanced is subclass 856 (Employer Nomination Scheme). The evidence before the Tribunal shows that the visa applicant does not meet key criteria for the other subclass.
15. One necessary primary criterion for a subclass 856 (Employer Nomination Scheme) visa that must be met at the time of decision visa is 856.221 which states that:
The appointment mentioned in paragraph 856.213(a) is an approved appointment.
16. The appointment mentioned in paragraph 856.213 is the nomination by Darrall Gibson & Sons Pty Ltd for the position of Supervisor (Construction). The application was refused by the Department on 8 January 2003 and the company applied to the Tribunal for a review of that decision. The Tribunal did not approve the nomination application, and the visa applicant cannot satisfy criteria 856.221 and this application must fail.
17. Given the findings made above, the Tribunal has no alternative but to affirm the decisions under review.
18. The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Employer Nomination (Residence) (Class BW) visas.
The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Employer Nomination (Residence) (Class BW) visas.