1510863 (Migration)

[2016] AATA 4644

1510863 (Migration) [2016] AATA 4644 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daisuke Yoshinari
Mrs Chieko Yoshinari

CASE NUMBER:  1510863

DIBP REFERENCE(S):  BCC/2014/332855 BCC2014/3328554

MEMBER:Denise Connolly

DATE:3 November 2016

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 03 November 2016 at 11:01am

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 July 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 4 December 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, 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 Temporary Residence Transition stream, to work in the nominated position of Cook. 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 on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nominating employer’s nomination application associated with the applicant was refused.

6. The applicant appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator. 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 who was present at the 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 relevant nomination has been approved.   

   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 applicant’s nominating employer, Aiboshi Group Pty Ltd, applied to the Department for approval of the position of Cook. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. On 3 November 2016 the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination under r.5.19(3).

    13.      On the evidence before it, the Tribunal is satisfied that:

    ·the position is the same one as was the subject of the r.5.19(3) nomination application, the applicant was identified as the Subclass 457 visa holder in the nomination, and the position is the same as that in the visa application declaration

    ·the nomination has now been approved

    ·the nomination has not since been withdrawn

    ·the position is still available to the applicant

    ·the visa application was made no more than six months after the nomination of the position was approved; and

    ·there is no adverse information known to Immigration about the person who made the nomination or a person ‘associated with’ that person.

13. Therefore, the Tribunal finds cl.186.223 is met.

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

    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.186.223 of Schedule 2 to the Regulations.

    Denise Connolly
    A/g Senior Member