1511632 (Migration)

[2016] AATA 3630

1511632 (Migration) [2016] AATA 3630 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cha Ling Teo

CASE NUMBER:  1511632

DIBP REFERENCE(S):  BCC2014/3340046

MEMBER:Mary-Ann Cooper

DATE:24 March 2016

PLACE OF DECISION:  Melbourne

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

·cl.186.233 of Schedule 2 to the Regulations.

Statement made on 24 March 2016 at 11:44am

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 11 August 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 5 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, 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Primary School Teacher. 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 visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the position to which the visa application relates, had not been approved and therefore cl.186.233(3) was not met.

6. The applicant appeared before the Tribunal on 23 March 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the subject of an approved nomination which has not been withdrawn.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates is 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

    ·the nomination 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.

11. As noted above, the applicant applied on 5 December 2014 for a visa under the Direct Entry stream, to work in the nominated position of Primary School Teacher with Delacombe Primary School. The delegate’s decision, a copy of which was supplied with this review application, records that this nomination application, made in respect of the applicant’s position, was refused on 4 April 2015. Consequently, the Department refused the applicant's visa application on the basis that, as there was no approved nomination, she did not satisfy cl.186.233. There was no application made for Tribunal review of the nomination decision.

12. Prior to the hearing the Tribunal received a copy of  a “Notice of Decision: Nomination Approval Notice for a Subclass 186 Visa” which demonstrated that that a subsequent application for nomination approval, made by Delacombe Primary School in respect of the applicant’s position as Primary School Teacher, had been approved on 1 December 2015.

13. At the hearing the applicant confirmed that she remained employed by the nominating employer in the same role.

14. Based on this evidence and  documents on the Department and Tribunal files, the Tribunal finds that the position, nominated under r.5.19(4)(h)(i) to which this visa application relates, is the same position as was the subject of the declaration made in the visa application. Therefore cl.186.223(1) is met.

15. The Tribunal further finds, on the basis of the applicant’s oral evidence that she is still working with the nominating employer and therefore the person who will employ the applicant is the same nominator as in the application for approval. Therefore cl.186.233(2) is met.

16. On the basis of the oral and documentary evidence, the Tribunal is also satisfied that the nomination has been approved, it has not been withdrawn and is still available to the applicant. It follows that the requirements of cl.186.233(3),(4) and (5) are also met.

17. As noted above, the Department approved the nomination on 1 December 2015 and consequently it finds that the visa application, having been made on 5 December 2014, was made no more than six months after the nomination of the position was approved as required by cl.186.223(5).

18. It follows that the Tribunal is satisfied that the requirements of cl.186.233 are met.

    Secondary applicants

19. The Tribunal notes that the delegate’s decision also refused visas to the applicant’s mother and sister who were listed in her application as migrating family members.

20. The review application did not list them as applicants and the Tribunal’s file indicates that after several discussions with the applicant, an amended M1 form was not lodged. In any event, the Tribunal notes that the Department’s movement records show that the applicant’s mother and sister have not been in the migration zone since December 2013. In the circumstances of this visa application, an application for review could only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(2)(a) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. As such, the Tribunal would not have had jurisdiction in respect of the applicant’s listed family members had they also applied for review.

    CONCLUSION

21. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of the applicant.

    DECISION

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

    ·cl.186.233 of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member