1502534 (Migration)

[2016] AATA 4502

1502534 (Migration) [2016] AATA 4502 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shinji Kaidatsu
Mrs Yuki Kaidatsu

CASE NUMBER:  1502534

DIBP REFERENCE(S):  BCC2014/406141

MEMBER:Brook Hely

DATE:6 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 October 2016 at 11:10am

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 4 February 2015 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 11 February 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 Retail Buyer. 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 relevant nomination for the position had not been approved.

6. The applicants appeared before the Tribunal on 21 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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.

10. 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.

11. At the hearing, the Tribunal flagged with the applicant that the outcome of his application essentially turned on the outcome of the associated review application relating to the Department’s refusal of the nomination for the relevant position. The applicant and his agent did not dispute this.

12. Following the hearing, on 12 August 2016 the Tribunal wrote to the applicants under s 359A of the Act inviting their comments or response to adverse information, as follows:

    The particulars of the information are:

    1. According to information before the Tribunal, you were nominated for the purposes of your subclass 186 visa application by an employer, Daiso (Australia) Pty Ltd (since renamed Origo & Co Pty Ltd ) (‘Origo’), in accordance with r.5.19(4) of the Migration Regulations 1994 (“the Regulations”) for an appointment in the business. However, on 5 January 2015 a delegate of the Department refused the application for approval of the nominated position lodged by Origo.

    2.     On 23 January 2015, Origo applied to the Tribunal for review of that decision by the delegate. However, on 11 August 2016 the Tribunal affirmed the delegate’s decision.

    The information contained in paragraphs 1-2 is relevant to the review as it could, subject to your comments, lead the Tribunal to find that you do not satisfy the criteria for the visa because the relevant nomination to which your application relates has not been approved, as required by cl.186.233(3). If so, this would be the reason, or a part of the reason, for affirming the decision of the delegate under review.

13. The Tribunal did not receive any relevant response to or comments on the above adverse information. As foreshadowed in that letter, the Tribunal finds on the basis of the above information that the relevant nomination has not been approved and, accordingly the applicant does not meet the requirements of cl.187.233(3). He therefore does not meet the requirements of cl.187.233 in its entirety.

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.

15. There are no claims or evidence before the Tribunal to indicate that the second named applicant meets the primary criteria for the grant of the visa. Rather, her entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether she meets any additional visa criteria applicable. Given the Tribunal’s finding that the applicant does not meet the criteria for the grant of the visa, and given the lack of any claims or evidence to show that the second named applicant meets the primary criteria for the grant of the visa, it follows that she is also not entitled to the visa.

16. Finally, for completeness, the Tribunal notes that it was made aware by the applicants that, since the delegate’s decision, they had a baby. However, as explained to the applicant the hearing, since the child was born subsequent to the delegate’s decision, the child is not taken to be included in their parents’ visa application. In any event, there is no evidence before the Tribunal to indicate that the child could meet the primary criteria for the grant the visa and, accordingly, the same reasoning would apply as for the second named applicant.

    DECISION

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

    Brook Hely
    Member