De Souza Lopes (Migration)

[2023] AATA 2026

De Souza Lopes (Migration) [2023] AATA 2026 (22 June 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Thiago De Souza Lopes

CASE NUMBER:  1924662

HOME AFFAIRS REFERENCE(S):           BCC2018/4645466

MEMBER:  Sean Baker

DATE:  22 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 June 2023 at 9:42am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Telecommunications Engineer – subject of an approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
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 on 3 September 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 23 October 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Telecommunications Engineer.

1. The delegate refused to grant the visa because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the nomination in relation to the position had been refused.

1. The applicant appeared before the Tribunal at an interview held on 21 June 2023.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether there is an approved nomination in relation to the visa application.

Nomination of a position

1. 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.

1. 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.

11.       In the present case, the nomination referred to above was not approved. The visa application of the applicant was refused by the Department on this basis.

12.       The applicant’s nominator appealed the refusal of the nomination to the Tribunal. On 14 December 2022, the nomination lodged by Australian Residential Corporation Pty Ltd, being the nomination referred to in paragraph 187.233, was affirmed by the Tribunal.

13.       This information was put to the applicant for his comment or response in the 359A letter referred to above. The relevance and consequence were explained to the applicant.

14.       The applicant did not respond to the s 359A letter within time. He did however correspond extensively with the Tribunal in relation to his hearing date. As a result, the Tribunal decided to hold an interview with the applicant to receive his response to the information put to him under s 359A.

15.       At that interview I explained the letter to him. He indicated that he had receive the letter and understood. He asked if he could explain why the nomination decision had been incorrectly decided. I explained that as the matter had been decided by the Tribunal (differently constituted), there was no utility in him doing so for his case and explained why this was the case. He indicated he understood. I explained that as there was no approved nomination, I did not see how he could satisfy the criterion. He indicated he understood. I asked if he wished to say anything further and he said he did not.

16.       The position to which the application relates is not the subject of an approved nomination. The nomination was refused by the Department and this decision was affirmed by the Tribunal. There is therefore no approved nomination in relation to the application.

17.       The position must be the one that was the subject of the declaration made as part of the current visa application. It is clear that this requirement cannot be satisfied by a later nomination of a position. It is also clear that the application was in relation to the direct entry stream, and the applicant is unable to satisfy any other stream or subclass because the applicant does not meet key criteria for these streams.

1. The applicant therefore does not meet cl 187.233(3).

19.Therefore, cl 187.233 is not met.

20.       The applicant has only sought to satisfy the criteria for a Subclass 187 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

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

Sean Baker Member

ATTACHMENT A

186.233        (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 Direct Entry stream; and

(iii)seeks to meet the requirements of subregulation 5.19(10); 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.