DEAVE (Migration)

[2019] AATA 4706

DEAVE (Migration) [2019] AATA 4706 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Benedict Manley Deave
Miss Jessica Mattar Antunes

CASE NUMBER:  1806746

HOME AFFAIRS REFERENCE(S):           BCC2017/3341661

MEMBER:Wan Shum

DATE:10 July 2019

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:

·186.223 of Schedule 2 to the Regulations.

Statement made on 10 July 2019 at 10:02am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused –decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(1)

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 13 March 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 September 2017. 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). 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 Temporary Residence Transition stream, to work in the nominated position of Senior Technician. The occupation is ‘Performing Arts Technician (nec)’.

5. The applicant was nominated for this position by Live Productions Australia Pty Ltd, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was refused on 7 February 2018.

6. As a consequence, the delegate refused to grant the visas because there was not an approved nomination in respect of the applicant, which meant he did not meet cl.186.223 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants have sought review of the refusals. On 9 July 2019, the Tribunal decided to approve the nomination made by Live Productions Australia Pty Ltd, and for the following reasons, has concluded that this matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the first named applicant meets the criteria regarding the nomination of a position.

9. It is requirement  for the Subclass 186 visa in the Temporary Residence Transition stream that the position to which the application relates is the subject of an application for approval of a nomination in that stream which identifies the applicant as the holder of a Subclass 457 visa: clause 186.223(1). 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 r.1.13A and r.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. On the visa application form, the applicant provided details of a related nomination that matched the Transaction Reference Number EGOF2E9Y7B of the nomination made by Live Productions Australia Pty Ltd for the position of Performing Arts Technician. The applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c).

12. The relevant nomination sought to meet the requirements of r.5.19(3) and identified the applicant as the 457 visa holder. The Tribunal approved the nomination on 9 July 2019 and it has not been withdrawn.

13. The applicant is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person.  It does not have any information before it indicating that there have been any court/administrative/disciplinary actions or the like in relation to the nominator.

15. Therefore, cl.186.223 is met.

16. 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.

    Wan Shum
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.