1412615 (Migration)

[2015] AATA 3599

1412615 (Migration) [2015] AATA 3599 (5 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Brian Christopher Adams
Mrs Deborah Jeanne Adams
Miss Sofia Mikaeli Adams
Ms Isabella Victoria Adams
Ms Tegan Desiree Adams
Mr Wesley Elliot Coe Adams

CASE NUMBER:  1412615

DIBP REFERENCE(S):  BCC2014/47023

MEMBER:Jennifer Ciantar

DATE:5 November 2015

PLACE OF DECISION:  Sydney

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.186.233 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction with respect to the second and sixth applicants, Mrs Deborah Jeanne Adams and Mr Wesley Elliot Coe Adams.

Statement made on 05 November 2015 at 10:56am

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 July 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 7 January 2014. 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 Minister of Religion. 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.

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 nomination lodged by Youth With a Mission was refused on 30 May 2014.

6. The applicants appeared before the Tribunal on 8 October 2015 to give evidence and present arguments. The hearing was combined with the application lodged by Youth With a Mission (1410837).

7. The Tribunal explained to the applicants that if it makes a favourable decision about the nomination then the Tribunal will remit the Subclass 186 visa application for reconsideration on this basis and otherwise, the Tribunal will write to the applicants. However, as it appears that 2 of the secondary applicants were not in Australia at the time that the application for review was lodged, the Tribunal does not have jurisdiction in respect of these 2 applicants. The first named applicant confirmed that his wife and youngest child had had to depart Australia for a short period for family reasons.

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 there is an approved nomination in respect of the nominated position.

   Nomination of a position

10. 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.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant was the nominator in the application for approval

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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 Tribunal is satisfied that the position of Minister of Religion is the same position that was the subject of the r.5.19 nomination application lodged by the proposed employer, Youth With A Mission. On 5 November 2015 the Tribunal approved the nomination for the position of Minister of Religion, lodged by Youth With A Mission. The Tribunal is also satisfied on the evidence before it that the position has not been withdrawn, and that it continues to satisfy the criteria for approval, that it is still available to the applicant and that the visa application was made no more than six months after the nomination of the position was approved. The first named applicant therefore meets the remaining paragraphs of cl.856.233. The Tribunal accordingly finds the first named applicant satisfies the requirements specified in cl.856.233.

13. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

14. Information before the Tribunal indicates that the second and sixth named applicants, Mrs Deborah Jeanne Adams and Mr Wesley Elliot Coe Adams were not in Australia when the review application was made. In these circumstances the Tribunal finds it does not have jurisdiction in respect of the second named and sixth named applicants.

    DECISION

15. The Tribunal remits the applications 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.186.233 of Schedule 2 to the Regulations;

16. The Tribunal does not have jurisdiction in respect of the second and sixth named applicants, Mrs Deborah Jeanne Adams and Mr Wesley Elliot Coe Adams.

    Jennifer Ciantar
    Member