Akbas (Migration)

[2024] AATA 3478

Akbas (Migration) [2024] AATA 3478 (9 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mehmet Akbas
Ms Pitchaya Srichan

REPRESENTATIVE:  Mr John Kotsifas

CASE NUMBER:  2305878

HOME AFFAIRS REFERENCE(S):          BCC2022/2123452

MEMBER:George Hallwood

DATE:9 August 2024

PLACE OF DECISION:  Adelaide

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.

Statement made on 09 August 2024 at 12:38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chef de Partie – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 Home Affairs on 13 April 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 10 June 2022. 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 (Cth) (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 Labour 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 Chef de Partie.

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 associated nomination by Tulum Turkish Restaurant Pty Ltd had been refused and without an approved nomination the visa could not be approved.

6. On 6 August 2024 the applicant appeared before the Tribunal to provide evidence in relation to the associated nomination by Tulum Turkish Restaurant Pty Ltd. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the visa applicant based on the material before it pursuant to s360(2)(a) of the Act.

7. The applicants were represented in relation to the review.

8. Departmental records show that the secondary applicant in this matter, Ms Pitchaya Srichan, was in the migration zone at the time of the visa application, 10 June 2022, and also in the migration zone at the time of the review application 27 April 2023. For these reasons the Tribunal is satisfied there is jurisdiction for the secondary applicant under s 338(2).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria in cl 186.233.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. 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 reg 1.13A and reg 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.

13. A hearing was held before the Tribunal on 6 August 2024 in relation to the associated nomination by Tulum Turkish Restaurant Pty Ltd, case number 2304130, and the primary applicant in this matter was a witness and gave evidence at that hearing.  The evidence relating to this matter is detailed in the decision dated 6 August 2024 in relation to the associated nomination. The position to which this application relates is the subject of an approved nomination in the Direct Entry stream.

14. The position, Chef de Partie, is the one that was the subject of the declaration made as part of the current visa application. The application identifies the applicant, Mr Mehmet Akbas in relation to this position.

15. Tulum Turkish Restaurant Pty Ltd who made the nomination is the person who will employ the applicant.

16. The nomination was approved by the Tribunal on 6 August 2024 and has not subsequently been withdrawn.

17. The Tribunal is satisfied 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 reg 1.13A and reg 1.13B).

18. The position is still available to the applicant although now as a senior Chef de Partie.

19. As the visa application was made on 10 June 2022 and the nomination of the position was approved on 6 August 2024, the visa application was made no more than six months after the nomination of the position was approved.

20. Therefore, cl 186.233 is met.

    CONCLUDING PARAGRAPH

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

22. The secondary applicant in this matter was refused because the primary applicant did not hold a subclass 186 visa and so the secondary applicant was not a member of the family unit of a person who holds a subclass 186 visa. Now that the primary applicant’s application has been remitted, the Tribunal recommends that the Department reconsider the application of the secondary applicant together with that of the primary applicant.

    DECISION

23. 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.

    George Hallwood
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.