Bottini (Migration)

[2019] AATA 1149

Bottini (Migration) [2019] AATA 1149 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sabrina Bottini

CASE NUMBER:  1834549

HOME AFFAIRS REFERENCE(S):           BCC2017/222823

MEMBER:Katie Malyon

DATE:4 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 April 2019 at 12:40 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Singh v MIBP [2017] FCAFC 105

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 6 November 2018 to refuse to grant the applicant, Italian national Miss Sabrina Bottini, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Bottini applied for the visa on 17 January 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).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Miss Bottini is seeking the visa in the Direct Entry stream to work in the nominated occupation of Café or Restaurant Manager ANZSCO 141111 with her nominator, Garah Solutions Pty Ltd (the Company).

5. The delegate refused to grant the visa because Miss Bottini did not meet cl.186.233 of Schedule 2 to the Regulations as the nomination application made by the Company was refused by the Department on 8 October 2018 due to its failure to meet criteria in r.5.19(4) of the Regulations. A copy of the delegate’s decision was provided to the Tribunal.

6. At the time of lodging her review application on 23 November 2018, Miss Bottini requested that a decision be made on the material before the Tribunal. She stated that she wanted the Tribunal to ‘make a decision on the papers so that I can make a humanitarian appeal to the Minister’. Consistent with s.360(2) of the Act, the Tribunal did not invite Miss Bottini to appear before it to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Miss Bottini is the subject of an approved nomination as required by cl.186.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. Clause 186.233 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that that the position to which the visa application relates must 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 by the visa applicant as part of their current Subclass 186 visa application.  

10. 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.

11. Miss Bottini applied for a Subclass 186 visa on the basis of being nominated by her employer and nominator, the Company.  As noted above, the nomination application made by the Company in respect of her was refused by the Department on 8 October 2018.  The Company did not apply to the Tribunal for review of the delegate’s decision to refuse its nomination application.

12. As a result, the position to which Miss Bottini’s Subclass 186 visa application relates cannot meet criteria in cl.186.233 of Schedule 2 to the Regulations because there is no approved nomination by the Company in respect of her and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a 'once off' process. The Court observed that even a new nomination in respect of the same position made by the same employer could also not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the visa applicant had made their declaration in their visa application.

13. At the time of this decision, Miss Bottini is not the subject of an approved nomination. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

14. Miss Bottini has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream.  No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT A - Extract from Schedule 2 to the Migration Regulations 1994

    Part 186

    …

    186.23 Criteria for Direct Entry stream

    …

    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.

    oOOo