Carey (Migration)

[2020] AATA 4115

Carey (Migration) [2020] AATA 4115 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr John Paul Carey
Mr Ian Kieran Norman

CASE NUMBER:  1922433

HOME AFFAIRS REFERENCE(S):          BCC2018/3151830

MEMBER:Alan McMurran

DATE:15 September 2020

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations;

Secondary Applicant

The application by the secondary applicant is remitted to the Department for consideration of the remaining criteria for the visa.   

Statement made on 15 September 2020 at 10:20am           

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Hairdresser –tribunal set aside nomination decision–nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 13 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 24 July 2019 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 21 August 2018. 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 the Temporary Residence Transition stream, to work in the nominated position of Hairdresser.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination by the sponsor, Norman Brown Pty Ltd, was refused by the Department on 21 May 2019. In response to that decision, the applicant requested a deferral of the applicant’s visa decision pending the outcome of a review by the Tribunal of the nomination refusal. That request was refused, and the Department proceeded to a decision.  

6. The applicants appeared before the Tribunal on 14 September 2020 in a combined hearing with the review of the nomination decision to give evidence and present arguments. The appearances were by telephone in accordance with the Tribunal’s pandemic protocol, The Tribunal received oral evidence from both applicants.  

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 primary review applicant is the subject of an approved nomination.

   Nomination of a position

10. 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.

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. On 15 September 2020, the Tribunal on review decided to approve the nomination by Norman Brown Pty Ltd of the nominee for the occupation of Hairdresser.

13. The Tribunal finds therefor that the primary applicant is the subject of a nomination which has not been withdrawn and which has now been approved.

14. The Tribunal finds on the available information that there is no adverse information about the person who made the nomination or any associated person, that the position of Hairdresser with the sponsor is still available to the applicant, and that the visa application has been made within the prescribed period.

15. Therefore, cl.186.223 is met.

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

    Secondary applicant

17. The secondary applicant is a member of the primary applicant’s family unit within the meaning of r.186.311.

18. As a result, it is appropriate that the application by the secondary applicant be remitted to the Department for consideration of the remaining criteria for the visa.

    DECISION

19. 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;

    Secondary applicant

    The application by the secondary applicant is remitted to the Department for consideration of the remaining criteria for the visa.

    Alan McMurran
    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.