Balestrat (Migration)

[2023] AATA 4179

Balestrat (Migration) [2023] AATA 4179 (4 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Clement Didier Pierre Balestrat

REPRESENTATIVE:  Mr Mark Anthony Tarrant (MARN: 0211067)

CASE NUMBER:  2100916

HOME AFFAIRS REFERENCE(S):          BCC2019/4499836

MEMBER:Terrence Baxter

DATE:4 December 2023

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.233(3) of Schedule 2 to the Regulations.

Statement made on 04 December 2023 at 8:37am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – analyst programmer – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

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 19 January 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 9 September 2019. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Analyst Programmer for Blueshyft Pty Ltd (the nominator).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 27 February 2020 and that accordingly the applicant did not satisfy cl 186.233(3) and did not meet cl 186.233 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 January 2021.

7. The applicant appeared before the Tribunal by video conference on 27 September 2023 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application by the nominator.

8. The Tribunal exercised its discretion to hold the hearing by video conference through MS Teams. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by his registered migration agent Mr Mark Tarrant of Mark Tarrant Lawyers Pty Ltd. The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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.

13. 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.

14. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Analyst Programmer approved, with the applicant as nominee, on 6 September 2019. The nomination application was refused on 27 February 2020 and the nominator sought review of that decision with the Tribunal on 6 March 2020.

15. On 4 December 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the nominator.

16. Therefore, cl 186.233(3) is met.

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

    DECISION

18. 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(3) of Schedule 2 to the Regulations.

    Terrence Baxter
    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.