Bittencourt Silva (Migration)

[2018] AATA 3435

Bittencourt Silva (Migration) [2018] AATA 3435 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felipe Bittencourt Silva

CASE NUMBER:  1614421

HOME AFFAIRS REFERENCE(S):           BCC2015/3654083

MEMBER:Kate Timbs

DATE:10 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for the Employer Nomination (Permanent) (Class EN) visa for reconsideration with the direction that Mr Bittencourt Silva meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

Statement made on 10 August 2018 at 9:44am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(2)

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 to refuse to grant Mr Felipe Bittencourt Silva an Employer Nomination (Permanent) (Class EN) visa under section 65 of the Migration Act 1958 (the Act).

2. Mr Bittencourt Silva applied for the visa in the Temporary Residence Transition Stream on 3 December 2015. On 7 September 2016, the delegate refused to grant the visa on the basis that Mr Bittencourt Silva did not meet the criteria for the grant of the visa in clause 186.223 of Schedule 1 to the Migration Regulations 1994 (the Regulations).

3. Mr Bittencourt Silva applied for review of that decision on 8 September 2016. The Tribunal heard the review on 30 April 2018.

   RELEVANT LAW AND ISSUE FOR THE TRIBUNAL TO DETERMINE

4. To be granted the visa, Mr Bittencourt Silva must meet all relevant criteria in part 186 of Schedule 1 to the Regulations.

5. To satisfy clause 186.223:

   ·the position to which the application relates must be the subject of an application for approval of a nominated position under regulation 5.19(3);

   ·the nominator must identify Mr Bittencourt Silva as the relevant Subclass 457 visa holder;

   ·Mr Bittencourt must have declared the position was nominated under regulation 5.19 (as required by regulation 1114B(3)(d));

   ·the nomination must be approved by the Minister;

   ·it must not have been subsequently withdrawn;

   ·there must be no “adverse information” known to Immigration about the person who made the nomination or a person “associated with” that person  or that it is reasonable to disregard any such information;

   ·the position must still be available to Mr Bittencourt Silva; and

   ·the visa application must be made no more than six months after the nomination of the position was approved.

6. To deal with Mr Bittencourt Silva’s application for review, the Tribunal considered whether he satisfies that clause.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 27 November 2015, Serve Pty Ltd[1] (the company) applied for approval of a nomination under regulation 5.19. It identified Mr Bittencourt Silva as the relevant subclass 457 visa holder and he made the relevant declaration in his visa application. However, on 29 July 2016, the delegate refused to approve the nomination and found Mr Bittencourt Silva did not satisfy clause 186.223 for that reason.

   [1] The company was known then as Asbestos Removal Pty Ltd.

8. On 10 August 2018, the Tribunal (as presently constituted) set aside the decision to refuse to approve the company’s nomination and substituted the decision to approve it. In that case, Mr Bittencourt Silva also satisfies the criterion that the nomination has been approved.

9. In the course of approving the nomination, the Tribunal found the company has not withdrawn the nomination and that the position is still available to Mr Bittencourt Silva. It also found there was no relevant adverse information known to the Department of Home Affairs. Finally, it finds he applied for the visa before the Tribunal approved the nomination.

10. Having made those findings, the Tribunal finds Mr Bittencourt Silva satisfies all the criteria in clause 186.223. It will set aside the decision to refuse to grant the visas for that reason and send the matter back to the Department. Another delegate will then consider whether he meets all other relevant primary criteria for the grant of a visa.

    DECISION

    The Tribunal remits the application for the Employer Nomination (Permanent) (Class EN) visa for reconsideration with the direction that Mr Bittencourt Silva meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

    Kate Timbs
    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.