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CATCHWORDS: Review of visa refusal - Subclass 805 - employer nomination Migration Review Tribunal
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Elias, Hadi Hanna [2001] MRTA 0976 (14 March 2001)
Last Updated: 15 May 2001

[2001] MRTA 976

CATCHWORDS: Review of visa refusal - Subclass 805 - employer nomination

VISA APPLICANT: Hadi Hanna Elias

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: Paul Wakim

MRT FILE NUMBER: N99/01097

DIMA FILE NUMBER: V98/100431

DATE OF DECISION: 14 March 2001

AT: Sydney

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a General (Residence) (Class AS) visa.

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 Multicultural Affairs (the delegate). Mr Hadi Hanna Elias (the visa applicant), a national of Lebanon, born on 19 October 1951, applied for a General (Residence)(Class AS) visa on 22 October 1997 (D1, f.15). The delegate's decision to refuse to grant the visa was made on 2 June 1998 (D1, f.61). A review officer affirmed the delegate's decision on 27 March 1999 (D1, f.82).

JURISDICTION AND STANDING

2. The visa applicant lodged an application for review with the Immigration Review Tribunal on 21 April 1999 (T1, f.7). This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No.1) 1998. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY

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 Departmental 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 Affairs (DIMA). 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. 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. The legislation, Departmental policy and other materials that are immediately relevant to this review are:

Legislation:

Item 1119 of Schedule 1 to the Regulations

Part 805 of Schedule 2 to the Regulations

Departmental Policy:

Procedures Advice Manual 3 - Schedule 2- Skilled- Visa 805

Cases:

Nil

6. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

7. The Subclass 805 (Skilled) visa was removed on 1 November 1999. The relevant transitional provision provides that the Migration Regulations 1994 as in force immediately before 1 November 1999 continue to apply to applications for Subclass 805 (Skilled) visas. This means that applications not finally determined prior to 1 November 1999 are still considered against the criteria in force at the date of the application.

EVIDENCE

8. The Tribunal has the following documents:

T1 - MRT case file N99/01097,folio numbered 1-79.

D1 - DIMA file V98/100431, folio numbered 1-82.

9. The visa applicant entered Australia on a Close Family Visitor (Short Stay) visa on 16 August 1994. The visa applicant extended his stay in Australia and on 25 November 1996 was granted a Temporary Business Entry (Class UC) visa (Subclass 457) valid to 23 October 1997. He has since held a bridging visa granted on the basis of the application for a visa the subject of this review.

10. The visa application was made on 22 October 1997. The delegate stated that the visa was not granted on the basis that clause 805.212 was not met (D1, f. 61). The visa applicant made no claims when lodging the application for review (T1, f.6).

11. The visa applicant has admitted in writing on two occasions that he had been working prior to his grant of his Temporary Entry Visa whilst he was on his Close Family Visitor (Short Stay) visa. The fact that he commenced to work in contravention of his initial visa is a clear indication that he intended at all times to attempt to mislead DIMA and seek permanent residence in Australia by indirect means.

12. At the time the visa application was lodged, Class AS contained the following subclasses: Subclass 801 (Spouse), Subclass 804 (Aged parent), Subclass 805 (Skilled), Subclass 806 (Family), Subclass 814 (Interdependency), and Subclass 832 (Close ties). The only subclass in respect of which any claims have been advanced is Subclass 805. There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.

13. A Subclass 805 (Skilled) visa can be obtained on a number of grounds. The visa applicant indicated two grounds for the visa application and does not appear to meet key criteria for the other grounds. The first ground was on the basis of a Labour Agreement with Munch Nuts Pty Ltd (PR 3596502189040), which the Department had approved on 26 November 1996 with a validity of 12 months (D1, f.80). However, Munch Nuts Pty Ltd did not nominate the visa applicant under this Labour Agreement.

14. Instead, Munch Nuts Pty Ltd (the nominator) nominated the visa applicant in an employer nomination under the Employer Nomination Scheme (D1, f.41). The visa applicant must satisfy the criteria relating to a standard `employer nomination'. This includes criteria to be satisfied at time of application: holding one of the classes of visas described in clauses 805.212(2) to (5) with the relevant conditions, and then satisfying clause 805.213(3).

15. Clause 805.213(3) provides that (at time of application):

(3) An applicant meets the requirements of this subclause if:

(a) the applicant has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and

(b) the applicant is a highly skilled person within the meaning of regulation 5.19 in relation to that appointment; and

(c) unless the appointment is exceptional, the applicant:

(i) has not turned 45; and

(ii) has vocational English.

At time of application the visa applicant was nominated by Munch Nuts Pty Ltd in respect of an appointment of `Food Technologist (Honey Roasting)' in the business of the nominator (D1, f.41).

16. However, clause 805.222 provides that (at time of decision):

If the application is based on satisfaction of the criteria in subclause 805.213 (3) or (4):

(a) the appointment is an approved appointment under regulation 5.19; and

(b) the Minister is satisfied that the appointment will provide the employment referred to in the relevant employer nomination.

The Department rejected the nomination by letter dated 2 June 1998 (D1, f.50). Accordingly, the appointment of Food Technologist (Honey roasting) in Munch Nuts Pty Ltd is not an approved appointment under regulation 5.19.

17. The Principal Member Advice (PMA) 2/2000 provides an opinion that for applications for review of employer nominations decided by the Department before 1 July 1999 there is no right of Tribunal review in relation to regulation 5.19 issues. In particular, the Tribunal cannot review the regulation 5.19 issues as part of the visa review.

18. Accordingly, having regard to the evidence, the legislation and PMA 2/2000, the Tribunal makes the following findings:

* the visa applicant is not able to satisfy clause 805.213(2) in respect of a Labour Agreement as he was not nominated by Munch Nuts Pty Ltd for a permanent position under a Labour Agreement, and the visa applicant cannot satisfy clause 805.221,at the time of the Tribunal's decision as there is no approved appointment under a Labour Agreement.

* the visa applicant is not able to satisfy clause 805.222 at the time of the Tribunal's decision as there is no approved appointment under regulation 5.19.

19. The visa applicant was sent a letter on 17 August 2000 inviting the visa applicant to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. On 14 September the visa applicant sought an extension of time to respond to the Tribunal's letter. The Tribunal advised that the requested extension was granted on 13 October 2000 with a request that he respond prior to January 2001 as it was likely that the hearing would take place in that month. On 20 October 2000 the visa applicant was advised that the hearing would be held on 23 January 2001 and on 7 November he returned to the Tribunal the request for hearing form with a request for a copy of his file. Several telephone calls between the visa applicant and Tribunal staff were exchanged and access to the file was granted to the visa applicant, under supervision, on 23 November 2000.

20. The visa applicant contacted Tribunal staff on 11 January 2001 and sought information about his case, in particular whether he could be granted a Subclass 805 visa on the basis of a new sponsorship.

21. The Tribunal staff responded verbally and then on 11 January 2001 wrote to the visa applicant and advised him of the fact that a new sponsorship was not going to assist his appeal and gave the reasons to him. In addition he was provided with a copy of the Tribunal's first examination of his case and a copy of Principal Member's Advice 2/2000.

22. The visa applicant wrote to the Tribunal on 18 January 2001, which has been accepted as his response to the Tribunal's letter of 17 August 2000.

23. 23. A hearing was to be held on 23 January 2001,however the visa applicant failed to attend and a half an hour after the scheduled hearing time the Arabic interpreter booked for the hearing was authorised to leave the Tribunal.

24. The visa applicant is not represented.

DECISION

25. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a General (Residence) (Class AS) visa.

Elias, Hadi Hanna [2001] MRTA 0976 (14 March 2001)

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