Ceresara (Migration)

[2019] AATA 1655

Ceresara (Migration) [2019] AATA 1655 (26 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marco Ceresara
Ms Li-Chuan Chen
Miss Melania Ceresara

CASE NUMBER:  1701575

HOME AFFAIRS REFERENCE(S):           BCC2016/1977142

MEMBER:Alison Mercer

DATE:26 January 2019

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 of Schedule 2 to the Regulations.

Statement made on 26 January 2019 at 6:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position Electronics Engineering Technician – nomination refused  – nomination approved by tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth) ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, r 1.13, 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 19 January 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 7 June 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 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 Electronics Engineering Technician.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination. The delegate found that the nomination of the applicant made by his Australian employer, Nine Mile Fresh Pty Ltd, was refused by the Department on 12 December 2016. The delegate also refused to grant the second and third named applicants subclass 186 visas as they did not meet the secondary criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 30 January 2017, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Bonnie Kwan, as their representative and authorised recipient for correspondence.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. In addition, this criterion also requires that:

   ·the nomination has been approved and has not been subsequently withdrawn

   ·that 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.

10. It is not disputed that at the time that the primary decision was made, the applicant was not the subject of an approved nomination. However, the applicant’s employer, Nine Mile Fresh Pty Ltd, sought review of the decision to refuse its nomination of the applicant, and on 26 January 2019, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination (see AAT/MRD decision 1622607 of 26 January 2019). Accordingly, the Tribunal is satisfied  that the applicant is now the subject of an approved nomination by his original Australian employer, and that that nomination has not been withdrawn.

11. Moreover, based on the evidence provided to the Tribunal by Nine Mile Fresh Pty Ltd in connection with its nomination review (see AAT/MRD decision 1622607 of 26 January 2019), the Tribunal is satisfied that 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), that the position is still available to the applicant, and that the visa application was made no more than six months after the nomination of the position was approved.

12. Therefore, the Tribunal finds that cl.186.223 is met.

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

14. As the second and third named applicants applied on the basis of being members of the family unit of the applicant, their applications will be determined by reference to the outcome of the first applicant’s application upon remittal to the Department for reconsideration.

    DECISION

15. 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.

    Alison Mercer
    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.