Dachris (Migration)

[2018] AATA 1532

Dachris (Migration) [2018] AATA 1532 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vasileios Dachris

CASE NUMBER:  1600256

DIBP REFERENCE(S):  BCC2015/1824383 BCC2015/1832797

MEMBER:Hugh Sanderson

DATE:4 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 April 2018 at 2:02pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.233

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 21 December 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 June 2015. 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). 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

   Background

6. The applicant applied for the visa on the basis of him being nominated for the position of a Marketing Specialist. He was sponsored in his application by Anakalypto Marketing Pty Ltd. The applicant is the director and sole employee of Anakalypto Marketing Pty Ltd.

7. The nomination application by Anakalypto Marketing Pty Ltd was refused by the Department in their decision dated 18 November 2015. As the nomination application was refused, the Department found that the applicant was not subject of an approved nomination the applicant then did not meet the criteria in cl.186.223 and refused his application.

8. Anakalypto Marketing Pty Ltd and the applicant applied to the Tribunal for reviews of the respective decisions to refuse the nomination application and the visa application.

9. The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The applicant appeared on behalf of himself as the visa applicant and also as the representative of Anakalypto Marketing Pty Ltd. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

10. The Tribunal issued a decision on 27 February 2018 affirming the Department’s decision to refuse the nomination application of Anakalypto Marketing Pty Ltd. The Tribunal wrote to the applicant on 2 March 2018 pursuant to s.359A of the Act noting that as the Department’s decision to refuse the nomination application had now been affirmed by the Tribunal the applicant was not subject of an approved nomination or a valid review of a decision to refuse that application. This information would be the reason, or a part of the reason, for affirming the decision under review as it would indicate that the applicant was not subject of an approved nomination and would not meet the criteria in cl.186.233.

11. The applicant was required to respond to this information by 16 March 2018. The applicant contacted the Tribunal on 16 March 2018 requesting an extension of time to respond to the information. The applicant was granted the extension and advised that he was now required to respond to the information by 3 April 2018.

12. At the time of this decision, no response has been received by the Tribunal from the applicant in respect of the information that the decision of the Department to refuse the nomination application by Anakalypto Marketing Pty Ltd had been affirmed by the Tribunal. Accordingly, the Tribunal has proceeded to a decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is subject of an approved nomination.

    Nomination of a position

15. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination).

16. The nomination of the applicant by Anakalypto Marketing Pty Ltd was refused by the Department and that decision has now been affirmed by the Tribunal on review. As the applicant is not the subject of an approved nomination the criteria in cl.186.233(3) is not met.

17. Therefore, cl.186.233 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Hugh Sanderson
    Member