CAMARGOS DE MEIRELES (Migration)

[2018] AATA 1674

CAMARGOS DE MEIRELES (Migration) [2018] AATA 1674 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Renato CAMARGOS DE MEIRELES
Mrs Haryella Damcalov Lourenco
Miss Tayla Damcalov Meireles

CASE NUMBER:  1621557

DIBP REFERENCE(S):  BCC2016/1466372

MEMBER:Hugh Sanderson

DATE:4 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 of Schedule 2 to the Regulations.

Statement made on 04 May 2018 at 1:15pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nominated position of public relations professional – Sponsor’s nomination application set aside by the Tribunal

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 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 Immigration and Border Protection on 16 December 2016 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 15 April 2016. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of public relations professional. 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 visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application of the applicant’s sponsor, Bravo Migration Pty Ltd, had been refused by the Department and therefore the applicant was not subject of an approved nomination.

6. Both the sponsor and the applicant applied to the Tribunal for a review of the decisions refusing the nomination application and the visa application. On 12 March 2018 the Tribunal set aside the decision refusing the nomination application of the sponsor and substituted a decision approving the nomination. As the original decision of the Department has now been set aside and the nomination application has been approved, the Tribunal has proceeded to a decision without the need for a hearing.

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 applicant is the subject of an approved nomination.

   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. The position to which the application relates is the position nominated in the application and in relation to which the applicant was identified as the holder of a Subclass 457 visa. The necessary declaration was made in the application for the grant of the visa.

13. The decision of the Department to refuse the nomination application of Bravo Migration Pty Ltd has been set aside by the Tribunal. A decision has now been made approving the nomination. The information before the Tribunal indicates that the nomination has not been withdrawn and the position is still available to the applicant. The application is made within the required time period.

14. For the above reasons, the Tribunal finds the criteria in cl.186.223 is met.

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

16. As the Tribunal finds that the first named applicant meets this criterion for the grant of the visa, the applications of the second named applicants, who have applied for the visas on the basis of being numbers of the family unit of the first named applicant, are remitted so that they may be reconsidered in full.

    DECISION

17. 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 of Schedule 2 to the Regulations.

    Hugh Sanderson
    Member