Bowman (Migration)

[2020] AATA 623

Bowman (Migration) [2020] AATA 623 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tyler Bowman
Ms Suzanne Louise Birch

CASE NUMBER:  1725609

HOME AFFAIRS REFERENCE(S):          BCC2017/1168450

MEMBER:Susan Reece Jones

DATE:5 March 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.186.223(2) of Schedule 2 to the Regulations

Statement made on 05 March 2020 at 6:51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s position nomination refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 on 13 October 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 27 March 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 ‘Other Sports Coach or Instructor’ (ANZSCO: 452317), for the nominator, MELBOURNE DODGEBALL LEAGUE PTY LTD. The nominator operates a business which manages and promotes a sport known as Dodgeball across multiple venues in Victoria.

5. The delegate refused to grant the visas because the applicant did not meet 186.223(3) of Schedule 2 to the Regulations because the nominator, Melbourne Dodgeball League did not satisfy r.5.19(d) of the Regulations. On the delegate’s assessment of the information submitted by the nominator, it was not demonstrated that the nominated person would be employed on a full time basis in the position for at least two years. The delegate’s decision provided a financial analysis of the material that was submitted by the applicant, however as the applicant failed to provide verifiable evidence such as ATO lodged Business Activity Statements, Financial Statements or forecasts or projections in demonstration of the financial capacity of the applicant.

6.    The applicant, Mr Tyler Bowman (who is also the nominator’s sole Director), appeared before the Tribunal on 14 February 2020 to give evidence and present arguments.  

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

8.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    The issue in the present case is whether the relevant nomination has been approved.  

Nomination of a position

1. 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.

2. In addition, this criterion also requires that:

   ·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); 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.

3. The applicant applied for a visa on the basis of a nomination made by Melbourne Dodgeball Pty Ltd. The employer nomination in which the applicant is identified as the relevant 457visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 8 September 2017.  

4. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 5 March 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

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

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

7. 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 named visa applicant should also now be reconsidered in full.

8. Therefore, cl.186.223 is met.

DECISION

1. 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.

S. 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.