Calero Kaisin (Migration)

[2020] AATA 5200

Calero Kaisin (Migration) [2020] AATA 5200 (16 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Santiago Olivier Calero Kaisin
Mrs Maria Gloria Rueda Castro
Mr Mateo Santiago Calero Rueda
Miss Emily Zoe Calero Rueda

CASE NUMBER:  2003729

HOME AFFAIRS REFERENCE(S):          BCC2019/3498898

MEMBER:Warren Stooke AM

DATE:16 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2020 at 7:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Maintenance Planner – subject of an approved nomination – unique or exceptional circumstances – unfair or unreasonable results – occupation of short supply – highest priority of skills list in July 2020 – demonstrated a continuity of employment – deceptive and dishonest behaviour of the migration agent – flexibility in relation to work for associated entities – serious, ongoing and irreversible harm to Australia employer – exceptional economic, scientific, cultural and other benefits – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Fair Work Act 2009 (Cth), s 311
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 20 February 2020 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 12 July 2019. 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 Maintenance Planner – ANZSCO Code: 392911.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by PSAROS Pty Ltd identifying the applicant as the nominee was refused on 9 January 2020.

6. The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with his application.

7. The applicant stated that he had read the delegate’s decision and understood that the reason the visa application was refused was because the company went into administration and that the position nominated was removed from the list of nominated occupations.

8. The applicants appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. In addition, evidence was provided by Mr Michael Enslin, the CEO of Kastle Pty Ltd, who is the employer of the applicant following a transmission of assets and personnel from the previous owner, who retired and closed Psaros Pty Ltd.

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

10. The applicant, pursuant to s351 requested the Tribunal to consider a Ministerial Reference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issues in the present case are whether the first named applicant is the subject of an approved nomination and whether the second, third and fourth named applicants meet the criteria for the visa as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

13. The Tribunal explained to the applicant the requirements of cl.186.223

14. The Tribunal asked the applicant if he had an approved nominated sponsor and he responded: “No we don’t”.

15. The applicant provided evidence that he has satisfied the English language requirements from a test through PTE on 25 October 2016 and with a score of 56.

16. The applicant provided evidence that he has a Bachelor of Engineering Design from the Pontifical Catholic University in Ecuador.

17. The applicant provided the Tribunal with a signed declaration that included the following content:

    “I paid $13,140 to Rebecca Mason for her services ($3850) and Government fees
    ($9,290). My PR application never existed which means Rebecca never did her
    job which I had paid for. The government fees were never used or paid to the
    government. They should be refunded to the client however Rebecca refuses to
    do so.
    I want to live in Australia with my family but now find my 457 visa expiring on
    17 November 2019. I have lost 3 years of valuable time and due to changes in
    immigration laws do not meet the current application criteria which I did meet
    back in 2016. I also do not have the funds for another application. Rebecca has destroyed my families future.”

18. The Professional Standards and Integrity Section of the Office of the Migration Agents Registration Authority, Department of Home Affairs, undertook extensive investigations into the professional conduct of the Migration Agent, that had been engaged by the applicant and on 15 November 2018 the following decision in the matter was issued:

    “DECISION

    267. In all of the circumstances, and in the interests of consumer protection, I consider that it is appropriate to cancel the Agent’s registration.

    268. Based on the facts and evidence before me, and my findings as discussed in the decision, I have decided to cancel the Agent’s registration as a migration agent under subparagraph 303(1)(a) of the Act. I am satisfied for the purposes of subparagraphs 303(1)(f) and (h) that:

    • the Agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and

    • the Agent has not complied with clauses of the Code.

    269. In accordance with section 292 of the Act, an agent who has had their registration cancelled must not be registered within 5 years of the cancellation.

    270.Accordingly, this cancellation will be in effect for a period of 5 years from the date of this decision.”

19. The applicant has provided evidence that he has acquired professional skills, as a Maintenance Planner, that is consistent with the ANZSCO Code: 312911, as follows:

    “UNIT GROUP 3129 OTHER BUILDING AND ENGINEERING TECHNICIANS

    This unit group covers Building and Engineering Technicians not elsewhere classified.

    It includes Maintenance Planners, Metallurgical or Materials Technicians, and Mine Deputies.
    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Registration or licensing may be required.”

    Evidence of Witness – Mr Michael Enslin

20. Mr Enslin provided evidence that he is the CEO of Kastle Construction company that is engaged in building apartments and expensive villas (Shoreline Pty Ltd) as a property developer and that he has fifty per cent equity in the business, with a $15m turnover in the last financial year, plus $5-$6m derived from a related company.

21. The witness explained that the original company undertaking the business was Psaros Pty Ltd, which operated 6 years ago and he was the MD, at the time and that the applicant was engaged as a Maintenance Planner.

22. The witness stated that the founder of Psaros Pty Ltd retired employees, including himself, and the witness then set up Shoreline Pty Ltd (Kastle Construction company). In this process, Kastle acquired tools and key components from the company that included a ‘good will payment’, as a consideration and that accruals were preserved in the new entity.

23. The witness stated that Mr Calero (the applicant) continued to work with the new entity and that Kastle is prepared to sponsor the applicant. He stated that it would be devastating if he were to leave the company.

24. On 15 November 2020, the witness provided the Tribunal with a signed declaration, which amongst other material, attested to the following:

    a.A total of 14 employees transitioned from Psaros Pty Ltd to Shoreline Pty Ltd (Kastle Construction);

    b.The applicant transferred from Psaros Pty Ltd to Shoreline Pty Ltd (Kastle Construction) in the position of ‘Maintenance Planner’ on a salary of $65,000, plus superannuation of $6,175 and an annual leave balance of 107.5 hours and accrued personal/carers leave of 172.29 hours.

    Representative Submission (Mr Daniel Estrin)

25. At hearing, the Representative provided the Tribunal with submissions that outlined the background to the applicant’s application and the negligent behaviour of the migration agent, Ms Rebecca Mason, in progressing the application. Subsequent to the hearing, a detailed outline of the background circumstances concerning this application were included in a written submission provided to the Tribunal, in support of a Ministerial Reference, as follows:

    “Dear Member Stooke AM
    Santiago Olivier CALERO KAISIN (Primary Review Applicant) – referral for Ministerial
    Intervention

Date	Event
2003	Santiago arrives in Australia as the holder of a student visa.
15 November 2015	Santiago commences work with Psaros Pty Ltd as a Maintenance Planner ANZSCO 312911
17 November 2015	Santiago and his family are granted subclass 457 visas under the approved nomination for the occupation “Maintenance Planner” (note Mateo was granted his visa on 15 December 2015)
27 October 2016	Santiago engages former registered migration agent Rebecca Mason for subclass 186 visa
17 November 2017	Santiago engages former registered migration agent Rebecca Mason for subclass 186 visa
27 February 2018	Rebecca Mason advises Santiago that she is working with the business towards obtaining documents
4 April 2018	Sahil Tanwar from Rebecca Mason’s office emails Santiago and advises that once businesses documents are received the application will be processed.
5 September 2018	Santiago seeks advice from Deloitte who provides a conservative opinion that, based on Psaros’ status there were no options for transition to permanent residence.
6 May 2019	Santiago seeks advice from Estrin Saul Lawyers
1 July 2019	Psaros Pty Ltd lodges a subclass 186 nomination for the position under Regulation 5.19 – at that time, Danny Psaros was confident that the position would continue to be available (see letter attached)
12 July 2019	Santiago and his family lodge a subclass 186 visa application
4 November 2019	Department sends invitation to comment regarding adverse information (liquidator appointed)
15 November 2020	Santiago and his family’s 457 visas expire
2 December 2020	Santiago signs an employment contract with Shoreside Pty Ltd (trading as Kastle)
9 January 2020	Department refuses nomination and invites the applicant to comment – at that time a decision is made not to apply for Part 5 review of the nomination refusal because Psaros Pty Ltd was no longer operating.
7 February 2020	Estrin Saul Lawyers replies to the invitation to comment
20 February 2020	Department refuses subclass 186 via application
26 February 2020	Santiago and his family apply for Part 5 review of the decision
23 April 2020	Santiago turns 49
July 2020	The occupation “Maintenance Planner” is added to the highest “Priority Skilled Occupations List”1

1. We write in relation to the hearing to be held on 27 October 2020 in relation to a review of a 20 February 2020 decision by a delegate of the Minister for Home Affairs (Delegate) to refuse to grant a subclass 186 visa to Santiago Olivier Calero Kaisin (Santiago) a Belgian passport holder, and his family Maria Rueda Castro, Mateo Calero Rueda and Emily Calero Rueda.
2. We thank the Tribunal for accommodating our request for a video hearing.
3. This application is one Santiago concedes cannot succeed. He seeks the matter to be referred under Ministerial Intervention under section 351 of the Migration Act 1958 (Cth) (Act) for the following reasons:

a. had it not been for the negligence of his former agent Rebecca Mason in failing to
lodge the 186 application, Santiago and his family would hold permanent visas by
now; and
b. he is the victim of unintended consequences of the legislation, in not allowing transition to permanent residence purely because of a corporate restructure.

4. Santiago will give evidence about his former registered migration agent, Rebecca Mason (whose registration has been cancelled)2 specifically about the damage that she has caused him and his family. In essence, she failed to carry out the terms of the services agreement with Santiago by not lodge the subclass 186 application.
5. We attach Santiago’s witness statement and annexures made on 16 April 2019 for the purposes of Police Fraud Report IR Number 160419082016104 at Midland Police Station.
6. Santiago will also give evidence of him being approached for a meeting with Ms Mason’s former employee and lawyers in relation to a class action against Ms Mason.
7. Had it not been due to the negligence of Rebecca Mason in failing to lodge the 186 application, Santiago and his family would be permanent residents by now. His application would have been lodged at the end of 2017 and processed within around 12 months. A subsequent appointment of liquidators to Psaros Pty Ltd would have been immaterial to the 186 visa.

Unintended consequences of the legislation
8. At the time of assessment of the nomination, Psaros Pty Ltd was in liquidation. However, the former managing director of Psaros, Mike Enslin, had established Shoreside Pty Ltd (trading as Kastle) with co-director Justin Hatch, taking across with him a number of key personnel which made up a vast majority of the Psaros team. Kastle has been actively operating for over a year since having been established.
9. Along with Mr Enslin, Santiago transitioned his employment to Kastle and continues to perform the exact same Maintenance Planner position as he did while under the Psaros’ employ. The enclosed employment contract and reference letter issued by Kastle act as evidence of Santiago’s transition to employment by the related business Kastle.
10. “Maintenance Planner” was taken off the revised occupation lists (STSOL and MLTSSL) in the March 2017 changes which removed the subclass 457 visa. However, “grandfathering” under “Temporary Residence Transition” was not dependent on the revised occupation lists, meaning Santiago had a clear pathway to permanent residence under Psaros Pty Ltd (if only Rebecca Mason had lodged his application).
11. The 186 framework envisages the possibility that a subclass 457 visa holder doing the same role but subject to corporate restructure can still seamlessly transition their visa to the new corporate entity and be sponsored for permanent residence. Removal of the occupation “Maintenance Planner” meant that Kastle could not sponsor and “transition” Santiago across at the time.
12. The Department’s own Procedures Advice Manual (PAM) explain the complex corporate
arrangements and allows for some flexibility when it comes to work for associated entities:3
Where parent companies retain elements of the direct employer/employee relationship,
they may still be able to nominate even if the actual position is located with an associated
entity and other elements of the direct employer/employee relationship and direct control
are exercised by the associated entity.
Therefore, also for the purpose of nominations made under the ENS and RSMS DE stream,
corporate structures that involve employment by associated entities, and where the
nominated position exists within the business activities of entities associated to them (as
per s50/s50AAA of the Corporations Act), then this should not adversely impact on the
assessment of nominations made under this regulation. That is, the Department will adopt a
wider interpretation in instances of an established corporate relationship, including with
associated or subordinate entities, by recognising that a ‘direct control’ test can potentially
be satisfied in the context of the larger corporate structure, while not allowing completely
unrelated businesses to employ the applicant.

13. Unfortunately, Kastle and Psaros fall short of the associated entity test in section 50AAA of the Corporations Act 2001 (Cth), even though Santiago continues to do the same job and report to the same people he has since 2015; he fell victim to a corporate restructure which was not envisaged by immigration legislation.
14. Despite being “grandfathered” under transitional provisions, even if Santiago was now sponsored by Kastle,4 he would not be able to transition to permanent residence because he will be over the age of 50 by the time he meets the criteria under regulation 5.19. This precludes him from being granted a subclass 186 visa (see Schedule 2 subclause 186.221 of the Migration Regulations 1994 (Cth)).

Recommendation
15. The Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary
Reforms) Regulations 2018 (Cth) tried to ensure a smooth transition from the 457 visa to the 482
visa process to make sure those who held a subclass 457 visa before the changes were announced on 18 April 2017 would not be disadvantaged by transitional arrangements in relation to permanent residence.
16. Santiago’s visa fell through the cracks not only because of unconscionable delays by Ms Mason but also because of a rigid sponsorship framework that did not take into account some of the idiosyncrasies of corporate restructures.
17. We recommend that the Tribunal refer the matter to Ministerial Intervention under section 351 of the Act.
18. If we can be of any further assistance in this matter, please contact me at 08 9485 0650 or

[email protected].

1 PAM3 [Div5.3] Div 5.3 - General[Div5.3/reg5.19] Permanent Employer Sponsored Entry – Employer Nominations – Regulation 5.19 4.4.6 Work performed for associated entities”

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.

1. On the basis of the evidence provided to the Tribunal, the Tribunal is satisfied that the applicant, following the liquidation of Psaros Pty Ltd, does not have an approved nomination for the position of Maintenance Planner – ANZSCO Code: 392911 due to circumstances beyond the control of the applicant and as a result of the negligent behaviour of his, then engaged, previous migration agent. In this regard, the applicant stated at hearing, in response to a direct question from the Tribunal, as to whether he has an approved nomination: “No we don’t”.

2. Therefore, cl.186.223 is not met.

   Ministerial Reference

3. At the commencement of the hearing the applicant confirmed to the Tribunal that it was his intention to seek a Ministerial Reference, pursuant to s.351. The provisions of this clause, require that the application was accompanied by evidence that:

   ·the applicant has an approved nominated sponsor in accordance with cl.186.223

4. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >

   The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

5. The Tribunal considers, in this case, that the application of the relevant legislation does lead to an unfair or unreasonable result for the applicant, and accordingly, has decided to refer the matter to the Minister for consideration.

6. Whilst the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets cl.186.223, the Tribunal finds that a Ministerial Reference from the Tribunal pursuant to s.351, would be appropriate in this case, for the following reasons:

   a.The evidence before the Tribunal has demonstrated that the applicant is a professional Maintenance Planner in an occupation of short supply and has demonstrated a continuity of employment with Psaros Pty Ltd and upon a ‘transfer of business’ subsequently, the Kastle Construction company (Shoreline Pty Ltd), which is operated by a common group of employees, including the applicant;

   b.The applicant has a Bachelor of Engineering Design from Pontifical Catholic University, Ecuador where he qualified in 1994;

   c.The applicant’s knowledge and expertise, in a profession that has a scarcity of skilled professionals, within the Australian construction industry, has demonstrable economic and construction industry skills to support a required contribution to the Australian community and is considered by the Tribunal to be compelling. In this regard, the Tribunal notes that the occupation of Maintenance Planner was added to the highest priority of skills list in July 2020;

   d.The applicant has been open and honest in his dealings with the Tribunal, and the Tribunal accepts the plight of the applicant and his family following the deceptive and dishonest behaviour of the migration agent, Ms Rebecca Mason, whom he engaged to progress his 186 visa application, in good faith. In this regard, the applicant engaged Ms Rebecca Mason to lodge his 186 visa application and it is evident from the material submitted to the Tribunal that the agent did not comply with her professional duties, as required. As a consequence, the Tribunal is satisfied that the enforced lapse of time, whereby the application was not lodged on behalf of the applicant and resulted in a change in policy that temporarily removed the occupation from the short skills list, together with a change in the age criteria, played the applicant into circumstances where he was unable to comply with the contemporary criteria. Additionally, the applicant provided his agent with funds that were intended to be paid to the Commonwealth to support the application, in the sum of $9,290. The Tribunal regards these circumstances, as unintended consequences of the legislation, which came into effect due to the negligence and misconduct of the representing Migration Agent.

   e.The Professional Standards and Integrity Section of the Office of the Migration Agents Registration Authority, Department of Home Affairs, undertook extensive investigations into the professional conduct of the Migration Agent, that had been engaged by the applicant and on 15 November 2018 the Professional Standards and Integrity Section and decided to cancel the Agent’s registration as a migration agent under subparagraph 303(1)(a) of the Act and stated: “I am satisfied for the purposes of subparagraphs 303(1)(f) and (h) that:

   • the Agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and

   • the Agent has not complied with clauses of the Code”;

   f.As advocated by the applicant’s Representative, the Department’s own Procedures Advice Manual (PAM) explains the complex corporate arrangements and allows for some flexibility when it comes to work for associated entities, wherein it states:

   “Where parent companies retain elements of the direct employer/employee relationship, they may still be able to nominate even if the actual position is located with an associated entity and other elements of the direct employer/employee relationship and direct control are exercised by the associated entity.
   Therefore, also for the purpose of nominations made under the ENS and RSMS DE stream, corporate structures that involve employment by associated entities, and where the nominated position exists within the business activities of entities associated to them (as per s50/s50AAA of the Corporations Act), then this should not adversely impact on the assessment of nominations made under this regulation. That is, the Department will adopt a wider interpretation in instances of an established corporate relationship, including with associated or subordinate entities, by recognising that a ‘direct control’ test can potentially be satisfied in the context of the larger corporate structure, while not allowing completely unrelated businesses to employ the applicant.”[1]

   g.The Tribunal finds that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens and permanent residents that would be denied access to the skills, that have the potential to be provided by the applicant. In this regard, the owner of Kastle Construction provided evidence that it would be devastating for the business to not being able to continue to employ the applicant;

   h.As enunciated by the applicant’s representative, the applicant’s visa application has fallen through the cracks not only because of unconscionable delays by Ms Mason but also because of a rigid sponsorship framework that did not take into account some of the idiosyncrasies of corporate restructures. In this regard, the Tribunal is cognisant that the ‘transfer of business’ principles pursuant to s311 of the Fair Work Act 2009 acknowledges the continuity of employment and entitlements, which applied to the applicant with the change of employer of the applicant:

   “(4)  There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.”

   i.The Tribunal is satisfied that the application of the relevant legislation will lead to both unfair and unreasonable results for the applicant and his family in this case, if the 186 visa application were not to be granted.  

   [1] PAM3 [Div5.3] Div 5.3 – General [Div5.3/reg5.19] Permanent Employer Sponsored Entry – Employer Nominations – Regulation 5.19 4.4.6 Work performed for associated entities

7. Finally, the Tribunal, whilst acknowledging that the discretion solely rests with the Minister in these matters, recommends that the ‘exceptional economic, scientific, cultural and other benefits’ that would result from the applicant being permitted to remain in Australia, with the granting of a 186 visa, are significant for the reasons outlined herein. As such, the Tribunal recommends that the Minister’s discretion should be exercised in this worthy case.

   Conclusion

8. 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.

9. On the basis that the primary applicant has not satisfied the requirements to be granted a 186 visa, it follows that the secondary applicants are not members of a family unit that has satisfied the criteria for the granting of 186 visas.

   DECISION

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

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.