Bravo (Migration)

[2017] AATA 510

Bravo (Migration) [2017] AATA 510 (28 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cristiano Bravo

CASE NUMBER:  1607625

DIBP REFERENCE(S):  BCC2015/2790078

MEMBER:Tony Caravella

DATE:28 March 2017

PLACE OF DECISION:  Perth

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

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 28 March 2017 at 4:35pm

CATCHWORDS

Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – cl 186.223 – Nominated position of Chef –Tribunal approved the nomination – Visa application made no more than six months of nomination approval

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 186.223, r 5.19(3)

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 on 12 May 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 24 September 2015. 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Chef (ANZSCO 351311). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the delegate found the Minister had not approved the nomination submitted by the applicant’s sponsor, the Windsor Hotel South Perth Pty Ltd. The delegate found the application for nomination approval by the sponsor was refused on 31 March 2016.

6. The applicant appeared before the Tribunal on 24 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pat Jennings, General Manager, Windsor Hotel South Perth Pty Ltd. 

7. The applicant was represented in relation to the review by his 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 applicant meets the criteria in cl.186.223 of Schedule 2 to the Regulations.

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

11. 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.

12. In a separate matter, namely AAT Case 1604808, the Tribunal considered an application for a review of the delegate’s decision to refuse the nomination submitted by the sponsor Windsor Hotel South Perth Pty Ltd.  On 28 March 2017, this Tribunal set aside the decision under review and substituted a decision approving the nomination.  The Tribunal therefore finds that the nomination has now been approved and has not been subsequently withdrawn.

13. The Tribunal has considered all the evidence before it and finds 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).  It is therefore not necessary to consider whether it is reasonable to disregard information.

14. Having regard to all the evidence before it, including the sworn oral evidence of the sponsor’s general manager, Mr Pat Jennings, the Tribunal finds the position is still available to the applicant.

15. The Tribunal finds the visa application was made on 24 September 2015.  The Tribunal therefore finds the visa application was not made more than six months after the nomination of the position was approved.

16. Therefore, cl.186.223 is met.

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·cl.186.223 of Schedule 2 to the Regulations.

    Tony Caravella
    Member