DE MACEDO TERCAS (Migration)

[2023] AATA 2793

DE MACEDO TERCAS (Migration) [2023] AATA 2793 (24 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Laura DE MACEDO TERCAS
Ms Daniela RODRIGUES LEITE

REPRESENTATIVE:  Mr Michel Sulzbach (MARN: 0957975)

CASE NUMBER:  1931696

HOME AFFAIRS REFERENCE(S):          BCC2018/2911524

MEMBER:Sheridan Aster

DATE:24 August 2023

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 requirements of cl 186.223 of Schedule 2 to the Migration Regulations 1994.

Statement made on 24 August 2023 at 9:38am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Architectural Draftsperson – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 28 October 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 3 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 (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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Architectural Draftsperson.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination application made by the applicant’s employer was refused.

6. The applicants appeared before the Tribunal on 1 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Robert Michael Harwood.

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

   Nomination of a position

9. 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.

10. 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 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.

11. The applicant’s nominating employer, Robert Michael Harwood, applied to the Department of Hone Affairs for approval to nominate Ms Tercas for the position of Architectural Draftsperson on 27 June 2018. Ms Tercas applied for the visa with the relevant declaration.

12. The application by Robert Michael Harwood was refused, and the employer subsequently applied to the Tribunal for review of that decision.

13. On 23 August 2023, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. As the relevant nomination has now been approved, the applicant meets the requirements in cl.186.223 (1) and (2).

14. The nomination has not been subsequently withdrawn: cl.186.223(3).

15. Having regard to the information on the related Tribunal file in respect of the nomination application, the Tribunal notes that there was adverse information known to Immigration about the person who made the nomination or a person associated with that person, however it was reasonable to disregard: cl.186.223(3A).

16. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided at the hearing that the position is still available to the applicant: cl.186.223(4).

17. The visa application was made in 2018 and was therefore not made more than 6 months after the approval of the nomination: cl.186.223(5).

18. Based on the above, the requirements in cl.186.223 are met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

19. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

20. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the requirements of cl 186.223 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Aster
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.