Bell (Migration)

[2020] AATA 5441

Bell (Migration) [2020] AATA 5441 (31 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Matthew Bell
Mrs Emma Louise Bell
Master Jake Matthew Ellis Bell

CASE NUMBER:  1806847

HOME AFFAIRS REFERENCE(S):          BCC2017/3719829

MEMBER:Susan Reece Jones

DATE:31 October 2020

PLACE OF DECISION:  Melbourne

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.186.23(2) of Schedule 2 to the Regulations

Statement made on 31 October 2020 at 4:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Technical Sales Representative – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 March 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 11 October 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 Technical Sales Representative (ANZSCO nec – 225499).

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 nominator, SW INDUSTRIES PTY LTD, did not demonstrated that it had the financial capacity to be able to pay the full-time salary and other employment conditions for the nominated position for at least 2 years.

6. The applicants appeared before the Tribunal on 21 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from nominator’s sole director, Mr James Stewart.

7. The applicants were represented in relation to the review by their registered migration agent. The representative Mr Ian Singer of Australia Migrate Pty Ltd, attended the Tribunal hearing.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 requirements of cl.186.223.  

    Nomination of a position

11. 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.

12. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn(cl.186.223(2) and (3));

    ·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(cl.186.223(3A));

    ·the position is still available to the applicant (cl.186.223(4)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).

13. The applicant applied for a visa on the basis of a nomination made by SW INDUSTRIES Pty Ltd. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 13 March 2018.  

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 30 October 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.223(2).

16. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.223(2), as it is also satisfied (partly based on the evidence provided by the employer in the associated nomination review) that there is no adverse information know to Immigration about the nominating business, 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 refused.

17. Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

18. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.186.223(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second and third named visa applicants should also now be reconsidered in full.

    DECISION

19. 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(2) of Schedule 2 to the Regulations

    Susan Reece Jones
    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.