Alberto (Migration)

[2020] AATA 4002

Alberto (Migration) [2020] AATA 4002 (31 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zosimo Jr Casilag Alberto
Mrs Rodelia Isidro Alberto
Master Sean Gabriel Isidro Alberto

CASE NUMBER:  1817122

HOME AFFAIRS REFERENCE(S):          BCC2017/4767789

MEMBER:George Hallwood

DATE:31 July 2020

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.186.223 of Schedule 2 to the Regulations.

Statement made on 31 July 2020 at 2:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Civil Engineering Draftsperson –nomination approved –subject of an approved nomination – position is still available to the applicant –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 Home Affairs on 24 May 2018 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 for the visas on 13 December 2017. 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 Labour 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 “Civil Engineering Draftsperson”.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the related nomination had not been approved.

6.    The applicants appeared before the Tribunal by telephone on 7 July 2020 to give evidence and present arguments. The hearing was combined with the hearing of the related nominator – case file number 1812955 and the Tribunal also received oral evidence from Mr Rooke, a director of the nominator.

7.    The applicants were represented in relation to the review by their registered migration agent.

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 there is an approved nomination for the primary applicant.

Nomination of a position

10.      Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

1. The Tribunal has before it the departmental file which includes the visa application and supporting documentation. Further material has also been provided by the applicant during the course of the review.

2. The evidence includes an employment contract dated 23 March 2017 and Mr Rooke confirmed the applicant’s employment would continue for more than two years.

3. At the hearing, the applicant confirmed that he has been employed full time as a Civil Engineering Draftsperson in Australia in the nominating business since 12 February 2015 and continues to be employed in that position.

4. The Department's records show that the applicant was granted a subclass 457 visa on 12 February 2015 which was valid until 12 February 2019.

5. The Tribunal approved the relevant nomination by Iron Ink Drafting Pty Ltd, file number 1812955, on 31 July 2020.

6. On the basis of the evidence before it the Tribunal is satisfied that:

   ·     the position of Civil Engineering Draftsperson is the same one as was the subject of the r.5.19(3) nomination application;

   ·     Mr Alberto was identified as the subclass 457 visa holder in the nomination for the position of Civil Engineering Draftsperson by Iron Ink Drafting Pty Ltd;

   ·     at the time of the current visa application Iron Ink Drafting Pty Ltd operated in Unley South Australia;

   ·     the position is the same position as that in the visa application declaration made by the applicant;

   ·     the nomination of Mr Alberto by Iron Ink Drafting Pty Ltd has not been withdrawn;

   ·     the position is still available to the applicant; and

   ·     on 31 July 2020 the nomination of Mr Alberto by Iron Ink Drafting Pty Ltd was approved, and this approval date is not more than six months before the visa application was made.

   ·     there is no ‘adverse information’ on the Department’s file or evident to the Tribunal about the person who made the nomination or a person ‘associated with’ that person within the relevant meaning

7. Therefore, cl.186.223 is met.

   CONCLUDING PARAGRAPHS

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

9. The Tribunal notes that the secondary applicants were refused visas solely on the basis that the primary applicant’s application was refused. The visa applications for the secondary applicants are to be determined by reference to the outcome of the first named visa applicant’s application following remittal to the department.

   DECISION

10. 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.

    George Hallwood
    Member

    
    

    ATTACHMENT A

    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.

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

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