De Castro Abano (Migration)

[2021] AATA 1192

De Castro Abano (Migration) [2021] AATA 1192 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Claudia Vanessa De Castro Abano
Mr Joao Pedro Antunes Morais
Ms Lana Abano Abu Zayyad

CASE NUMBER:  1832801

HOME AFFAIRS REFERENCE(S):          BCC2018/288039

MEMBER:Joanne Bakas

DATE:18 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.233(3) of Schedule 2 to the Regulations

Statement made on 18 March 2021 at 12:59pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Recruitment Consultant – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 17 January 2018. The delegate refused to grant the visas on 17 October 2018.

2. The delegate made the decision on the basis that the applicant did not meet cl 186.233 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the nomination of the position had not been approved (186.233(3)).

3. On 18 March 2021the Tribunal decided to set aside the Department’s decision and substitute a decision approving the nomination.

4. 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 s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether there is an approved nomination of the position.

   Nomination of a position

6. 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). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.

7. In addition, this criterion also requires that the nomination has been approved (cl.186.233(3)).

8. The applicant was nominated by Premier People Pty Ltd for a position in the occupation of Recruitment Consultant (ANZSCO 223112). The Department refused the associated nomination and Premier People Pty Ltd applied for review of that decision.

9. On 18 March 2021, the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

10. As the relevant nomination has now been approved, it follows that the requirement in cl.186.233(3) is now met.

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

12. As the Tribunal has found that the primary applicant satisfies cl. 186.233(3), it is appropriate that the secondary applicants’ applications are also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

    DECISION

13. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

    ·cl.186.233(3) of Schedule 2 to the Regulations

    Joanne Bakas
    Member