1411739 (Migration)

[2016] AATA 3328

1411739 (Migration) [2016] AATA 3328 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dawn Allyson Spivey
Mr Charles Peter Rodney Spivey
Master Marcus William Spivey
Miss Jessamine Bindii Marilyn Spivey
Ms Georgia Leigh Spivey

CASE NUMBER:  1411739

DIBP REFERENCE(S):  BCC2013/191538

MEMBER:Don Smyth

DATE:29 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 29 February 2016 at 10:24am

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 13 June 2014 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 6 February 2013. 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 Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager. 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 applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the relevant nomination lodged by Classic Holiday Club Pty Ltd had been refused on 15 May 2014.

6. The applicants appeared before the Tribunal on 6 January 2016 to give evidence and present arguments.

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

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.186.233.

   Nomination of a position

10. Clause 186.223 requires that, for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

11. 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.

12. The first named applicant applied on 6 February 2013 for a visa under the Temporary Residence Transition stream to work in the nominated position of Sales and Marketing Manager. On 15 May 2014, the Department made a decision to refuse the approval of this nomination application. The Department subsequently refused to grant the applicants Employer Nomination (Permanent) (Class EN) visas on the basis that, as there was no approved nomination, the first named applicant did not satisfy cl.186.233.

13. The nominating employer applied to the Tribunal for review of the primary decision refusing approval of the nomination. On 9 February 2016, the Tribunal set aside the decision under review and substituted it with a decision approving the nomination by Classic Holiday Club Pty Ltd (file number 1409974).

14. The Tribunal notes that the delegate refused to grant the applicants the visas on the basis that the first named applicant did not satisfy cl.186.233. However, cl.186.233 is one of the criteria for applicants seeking to satisfy the primary criteria in the Direct Entry stream. The applicant is not seeking to satisfy the criteria in the Direct Entry stream and there is no suggestion of any nomination that seeks to meet the requirements of subparagraph 5.19(4)(h)(i). The applicant is seeking the visa in the Temporary Residence Transition stream. While it is not possible for the Tribunal to find that the first named applicant satisfies cl.186.233, the Tribunal finds that this criterion is simply not relevant to the stream in which the applicant is seeking the visa. Rather, cl.186.223 provides the relevant criterion.

15. Based on the documentation on the Departmental and Tribunal files, the Tribunal is satisfied that the position to which the application relates is the position nominated in the relevant application for approval by Classic Holiday Club Pty Ltd and that the first named applicant was identified as the Subclass 457 visa holder in the nomination. It is also satisfied that it is the same position as was the subject of the declaration made in the visa application. The requirements of cl.186.223(1) are met.

16. In circumstances where the Tribunal has set aside the decision refusing approval of the nomination and substituted a decision approving the nomination, the Tribunal finds that cl.186.223(2) is met.

17. The Tribunal finds based on the evidence provided during the course of the review that the position has not been withdrawn and that it is still available to the applicant. It is satisfied that the requirements of cl.186.223(3) and (4) are met.

18. Subclause 186.223(3A) requires that there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ them, or it is reasonable to disregard any such information. A similar requirement applies in relation to approval of a nomination application pursuant to r.5.19: r.5.19(3)(g). The Tribunal found in the context of the related nomination application (1409974) that there was adverse information about the nominator. In this regard, the evidence before the Tribunal indicates that, on 17 February 2014, Classic Holiday Club Pty Ltd was sanctioned under s.140M(1)(c) of the Act for failure to comply with sponsorship undertakings  required of an approved business sponsor for temporary visas.  The sanction consisted of a 12-month ban on sponsoring more people for Subclass 457 visas. The Tribunal finds that the sanction imposed on 17 February 2014 on the basis of the breaches found by the Department constitutes “adverse information” about the person who made the nomination in accordance with the definition in r.1.13A. The Tribunal has considered whether it is reasonable to disregard the adverse information. The breaches on which the sanction were based were, in the Tribunal’s view, serious in nature. However, the Tribunal notes that the evidence indicates that the Department took the view that the breaches were reckless and was satisfied at the time of applying the sanction that the nominating company had demonstrated a better understanding of its obligations. The sanction in relation to sponsorship for Subclass 457 visas has now expired. At the time the sanction was imposed, the Department recorded a number of steps the nominating company had taken to rectify the breaches and a number of measures it had taken to address the issues giving rise to the breaches. In the context of the nomination application, representatives of the nominator gave further evidence about the steps the company had taken in this regard. The evidence before the Tribunal indicates that the company was approved by the Department as a standard business sponsor in April 2015 and that monitoring conducted in 2015 produced a satisfactory result. This provides an indication that the steps that were identified to address the earlier issues have in fact been effectively implemented. It suggests also that the nominating company has displayed an improved understanding of its sponsorship obligations and a commitment to meeting those obligations. Having regard to all the circumstances, the Tribunal concludes that it is reasonable to disregard the relevant adverse information for the purposes of the present application. There is no suggestion that there is any other adverse information known to Immigration about the person who made the nomination or a person ‘associated with’ them. The Tribunal is satisfied that the requirements of cl.186.223(3A) are met.

19. The Tribunal made the decision approving the nomination on 9 February 2016. It finds that the visa application was made no more than 6 months after the nomination was approved as required by cl.186.223(5).

20. It follows that the Tribunal is satisfied that the requirements of cl.186.223 are met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second, third, fourth and fifth named applicants applied on the basis of being members of the family unit of the first named applicant, the outcome of their applications will depend on the outcome of the application of the first named applicant on remittal to the Department.

    DECISION

21. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations.

    Don Smyth
    Senior Member