Correa Diniz (Migration)

[2022] AATA 3884

Correa Diniz (Migration) [2022] AATA 3884 (21 October 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gabriel Correa Diniz
Mr Fabricio Dos Santos E Silva

REPRESENTATIVE:  Mr Mark Roberts (MARN: 1575942)

CASE NUMBER:  1920329

HOME AFFAIRS REFERENCE(S):          BCC2019/1482069

MEMBER:Namoi Dougall

DATE OF DECISION:  21 October 2022

DATE CORRIGENDUM SIGNED:            21 October 2022

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

With reference to the secondary applicant, that front page be amended to show that:

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visas:

· cl 186.312 of Schedule 2 to the Regulations.

Namoi Dougall

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gabriel Correa Diniz
Mr Fabricio Dos Santos E Silva

REPRESENTATIVE:  Mr Mark Roberts (MARN: 1575942)

CASE NUMBER:  1920329

HOME AFFAIRS REFERENCE(S):          BCC2019/1482069

MEMBER:Namoi Dougall

DATE:21 October 2022

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(2) of Schedule 2 to the Regulations; and

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visas:

·cl 186.313 of Schedule 2 to the Regulations.

Statement made on 21 October 2022 at 1:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – organisation and methods analyst – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.312

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 25 July 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicants applied for the visas on 24 March 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 (Cth) (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 Mr Gabriel Correa Diniz (the primary applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Organisation and Methods Analyst

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 position to which the application relates was not the subject of an approved nomination.

6.    The primary applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from a director of the nominating business, Kempo Ryu Pty Ltd.

7.    The applicants were represented in relation to the review.

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 the position to which the application relates is the subject of an approved nomination.

Nomination of a position

10.      Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11.      In addition, this criterion also requires that:

·the person who will employ the applicant is the person who made the nomination

·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 reg 1.13A and reg 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 11 June 2019 the nomination application lodged by Kempo Ryu Pty Ltd under the Employer Nomination Scheme was refused by the Department.

2. The Tribunal on 21 October 2022 in a review of the nomination refusal has subsequently approved the nomination. The Tribunal thus finds that the position to which the application relates is the subject of an approved nomination and meets the requirements of cl.186.223 of the Migration Regulations.

3. The Tribunal accordingly finds that the requirements of reg.186.223 are satisfied.

4. The second named applicant (the secondary applicant) applied for the visa on the basis of being members of the family unit of the primary applicant who meets primary criteria. As the Tribunal has approved the associated nomination and the secondary applicant is included in that nomination, the Tribunal finds that the secondary applicant meets the criteria in reg.186.312.

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

   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; and

   And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visa:

   ·cl 186.312 of Schedule 2 to the Regulations.

   Namoi Dougall
   Member

   
   
   

   ATTACHMENT A

   186.233(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:

   (i)subparagraph 5.19(4)(h)(i); or

   (ii)subregulation 5.19(2) as in force before 1 July 2012; and

   (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

   (b)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 person who will employ the applicant is the person who made the nomination.

   (3)     The Minister has approved the nomination.

   (4)     The nomination has not subsequently been withdrawn.

   (4A)    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.

   (5)     The position is still available to the applicant.

   (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.