Bendasova (Migration)

[2019] AATA 3465

Bendasova (Migration) [2019] AATA 3465 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Iryna Bendasova
Mr Yurii Bendasov

CASE NUMBER:  1723833

HOME AFFAIRS REFERENCE(S):          BCC2017/2340763

MEMBER:De-Anne Kelly

DATE:01 July 2019

PLACE OF DECISION:  Brisbane

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(3) of Schedule 2 to the Regulations; and

·cl.186.233 of Schedule 2 of the Regulations.

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

· cl.186.311 of Schedule 2 to the Regulations.

Statement made on 01 July 2019 at 12:21pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – nomination refused – employment contract provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.233, 186.311, rr 1.13A, 1.13B

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 and Border Protection on 26 September 2017 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 30 June 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 the Direct Entry stream, to work in the nominated position of ‘Architectural Draftsperson (ANZSCO 312111)’.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 of the Regulations. This clause provides that:

   186.233
   (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:

   (i) subparagraph 5.19(4)(h)(i); or
   (ii) subregulation 5.19(2) as in force before 1 July 2012; 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 was the nominator in the application for approval.
   (3) The Minister has approved the nomination.
   (4) The nomination has not subsequently been withdrawn.
   (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.

6. On 8 August 2017 the nomination lodged by AI3D Pty Ltd, being the nomination referred to in cl.186.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

7. As the appointment was refused, cl.186.233(3) was not met.

8. The applicants appeared before the Tribunal on 21 May 2019 to give evidence and present arguments.

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

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 the visa applicants meet cl.186.233.

    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 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 r.1.13A and r.1.13B of the Regulations); 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. The Managing Director of AI3D Pty Ltd made the nomination and signed the Employment Contract demonstrating that he is the person who will employ the visa applicant and is the person who made the nomination.

15. The Managing Director of AI3D Pty Ltd applied to the Department for the approval of the position of ‘Architectural Draftsperson (ANZSCO 312111)’. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

16. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by the Managing Director of AI3D Pty Ltd.

17. There was no information on the ASIC website that would constitute adverse information regarding the company or its director. There was no evidence that the Department had adverse information regarding the Managing Director of AI3D Pty Ltd, being the person who made the nomination or his associates. The nominator advised the Tribunal that they had no matters pertaining to the business or the directors that would be adverse to their reputation.

18. The employment contract dated the 21 May 2019 and signed by both the nominator and the visa applicant demonstrates that the position is still available to the visa applicant. The nominator stated at the hearing that he wanted to retain a valuable employee.

19. The visa application was made on the 30 June 2017 and therefore was made no more than six months after the nomination of the position was approved.

20. Therefore, cl.186.233 is met.

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 visa applicant, Mr Yurii Bendasov, had his visa application refused by a delegate of the Minister on the 26 September 2017 on the basis that cl.186.311 in Schedule 2 of the Regulations was not satisfied. This clause provides that:

    186.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

23. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicant was a member of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

24. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicant’s visa application to the Minister since an approval of the primary applicant’s visa would necessarily mean that the primary visa applicant would hold a Subclass 186 visa, and the secondary applicant would then satisfy cl.186.311.

    DECISION

25. 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(3) of Schedule 2 to the Regulations; and

    · cl.186.233 of Schedule 2 of the Regulations.

26. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations.

    De-Anne Kelly
    Member

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.