AL KHOURY (Migration)

[2019] AATA 4454

AL KHOURY (Migration) [2019] AATA 4454 (1 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Michael Al Khoury

Ms Jessica Karam

CASE NUMBER:  1811837

DIBP REFERENCE(S):  BCC2017/2228109

MEMBER:  Katie Malyon

DATE:  1 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.223(1) of Schedule 2 to the Regulations; and,

·cl. 186.223(2) of Schedule 2 to the Regulations.

Statement made on 01 October 2019 at 2:25 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Biotechnologist – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 23 June 2017. The delegate refused to grant the visas on 10 April 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

2. 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

3. In the present case, the first named applicant – Lebanese national Mr Michael Al Khoury - is seeking the visa in the Temporary Residence Transition stream to continue working in the nominated position of Biotechnologist ANZSCO 234514 with his nominating employer TLC Diagnostics Pty Ltd (the Company). The delegate refused to grant the visas on the basis Mr Al Khoury did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by the Company was refused. The provisions of cl.186.223 are set out in the Attachment to this decision.

4. Mr Al Khoury and the second named applicant, his partner Ms Jessica Karam, appeared before the Tribunal on 1 October 2019 to give evidence and present arguments at a combined hearing with the Tribunal’s hearing of the delegate’s refusal of the Company’s nomination (Matter No. 1807327). The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing.

5. On 1 October 2019, in an oral decision, the Tribunal approved the related nomination application made under r.5.19(3) of the Regulations by the Company in respect of the position of Biotechnologist ANZSCO 234514 for nominee Mr Al Khoury. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is now met by Mr Al Khoury.

6. Given this finding, the appropriate course is to remit Mr AL Khoury’s Subclass 186 visa application to the Minister to consider remaining criteria for grant of the visa.

7. Ms Karam applied for her Subclass 186 visas on the basis of being a member of the family unit of Mr Al Khoury. As such, her application will be determined by reference to the outcome of Mr Al Khoury’s application on remittal to the Department for reconsideration.

   DECISION

8. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

   · cl.186.223(1) of Schedule 2 to the Regulations; and,

   · cl.186.223(2) of Schedule 2 to the Regulations.

   Katie Malyon
   Member

   Case Number 1811837  Page 2 of 3

ATTACHMENT – Extract from the Migration Regulations 1994

186.223

1. The position to which the application relates is the position:

   (a)    nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

   (b)    in relation to which the applicant is identified as the holder of a Subclass 457 ... visa; and

   (c)    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 Minister has approved the nomination.

3. The nomination has not subsequently been withdrawn.

(3A)    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.

1. The position is still available to the applicant.

2. The application for the visa is made no more than 6 months after the Minister approved the nomination.

oOOo

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