Bowe (Migration)

[2020] AATA 2277

Bowe (Migration) [2020] AATA 2277 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Eamonn Bowe
Ms Emma Heneghan

CASE NUMBER:  1813592

HOME AFFAIRS REFERENCE(S):          BCC2017/1352712

MEMBER:Susan Trotter

DATE:29 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 29 May 2020 at 5:37pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – no jurisdiction to review refusal – nominator in administration then deregistered – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 186.223(2), 186.311

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 24 April 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 April 2017. The first-named applicant, (the applicant) is a 28-year-old citizen of Ireland. The second-named applicant is a 32-year-old citizen of Ireland and is identified in the visa application as being the de facto partner of the applicant.

3. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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 applicant, as primary visa applicant, applied for the visa in the Temporary Residence Transition stream, to work in the nominated position of Residential Care Officer for Brynhild Pty Ltd Acting in Trust for Brynhild Investment Trust (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The second-named applicant applied on the basis of being a member of the family unit of the applicant.

6. The delegate refused to grant the visas on the basis that cl.186.223(2) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. The delegate also found that the second-named applicant could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 10 May 2018 and provided the Tribunal with a copy of the delegate’s decision.

8. The applicant appeared before the Tribunal by telephone on 27 May 2020 to give evidence and present arguments.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

11. Clause 186.223(2) is set out 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 primary 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:

    (a)  the nomination has been approved and has not been subsequently withdrawn;

    (b)  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;

    (c)   the position is still available to the applicant; and

    (d)  the visa application was made no more than six months after the nomination of the position was approved.

13. As noted in the delegate’s decision, and as discussed with the applicant at hearing, the nomination application lodged by the nominator nominating the applicant for the position of Residential Care Officer was refused by the Department on 15 March 2018.

14. The Tribunal put to the applicant[1], that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision and on, 12 February 2020, this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominator was deregistered (on 7 July 2019) such that there was no longer a valid application for review. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, meaning that there was no prospect that the nomination refusal decision could be changed, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant as primary applicant, and consequently to also refuse to grant the visa to the secondary applicant.

    [1] Pursuant to procedure set out in section 359AA of the Act

15. The applicant told the Tribunal that he understands that the nominator went into administration and he knows that was unfortunate for them. However, he has been in Australia for over four years and he has held up his end of the bargain. He understands that at the time of the Department’s decision in relation to the original nomination refusal, that the finance information was put in late and he is not sure if that would have made a difference at the time. The applicant told the Tribunal that his migration agent has been very helpful and is assisting him to look at what options they may have.

16. The Tribunal acknowledges the applicants’ circumstances as advised by the applicant. However, as discussed with the applicant at the hearing, the issue before the Tribunal relates to whether the associated nomination has been approved and the circumstances as to why the nomination was originally refused is not relevant to the issue before the Tribunal on this review application. The Tribunal notes, as also discussed with the applicant at the hearing, that there is no provision in the legislation to take into account discretionary matters such as the applicants’ circumstances and the Tribunal must make its decision in accordance with the applicable legislative provisions.

17. The issue before the Tribunal is whether the nomination associated with the applicant’s visa application has been approved. The evidence before the Tribunal indicates that associated nomination has been refused and that there is no pending review of that nomination refusal. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 is not met as a whole.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

19. The Tribunal must also affirm the decision not to grant the second-named applicant a Subclass 186 visa as she does not meet the secondary visa criterion requiring her to be a member of the family unit of a person who holds a Subclass 186 visa, and there is no evidence that she meets the primary visa criteria for this subclass in her own right.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Susan Trotter
    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.