Denney (Migration)

[2021] AATA 4967

Denney (Migration) [2021] AATA 4967 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Elliott Vaughan Denney
Mrs Sophia Sharon Arend Anderson

CASE NUMBER:  1831439

HOME AFFAIRS REFERENCE(S):          BCC2017/4881175

MEMBER:Peter Emmerton

DATE:6 October 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 06 October 2021 at 11:31am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Fitness Centre Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223

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 25 October 2018 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 20 December 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 (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 Fitness Centre Manager, ANZSCO 149112, Skill level 2.

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 was not approved.

6. The applicant appeared before the Tribunal, via video, on 15 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dorothy McKay, Director, representing the nominating entity, The Green Family Trust, The McKay Family Trust. This was combined with the hearing for MRT file reference 1827379, the nominator.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination has been refused.

   Nomination of a position

10. On 26 December 2017, the applicant’s sponsoring employer, The Green Family Trust, The McKay Family Trust applied for approval for a nomination for the position of Fitness Centre Manager ANZSCO 149112. Mr Elliott Vaughn Denney is the nominee for the position.

11. On 6 September 2018 the Department refused the application on the basis the nomination did not satisfy r.5.19(3)(b)(i) of the Regulations.

12. In a separate decision, the Department refused Mr Elliott Vaughn Denney’s subclass 186 visa application because the nomination was not approved.

13. The nominator, The Green Family Trust, The McKay Family Trust and the visa applicant, Mr Elliott Vaughn Denney each applied to the Tribunal to review the Department’s decisions.

14. On 15 September 2021 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by The Green Family Trust, The McKay Family Trust for the position of Fitness Centre Manager ANZSCO 149112.[1]

    [1] 1827379

15. On 15 September 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by The Green Family Trust, The McKay Family Trust.

16. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, they cannot satisfy the provision at clause 186.223 of Schedule 2 of the Migration Regulations.

17. The applicant was advised that if they cannot satisfy cl.186.223 the Tribunal would affirm the decision of the Department of Immigration and Border Protection refusing the visa.

18. The applicant was invited to provide a written response by 29 September 2021. The letter advised the applicant that, ‘If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

19. The applicant did respond to the Tribunal’s s.359A letter on 23 September 2021 with a Statutory Declaration dated 22 September 2021. The Tribunal notes a second Statutory Declaration was provided by the nominator in support of the visa applicants, which contained similarly themed information. Like the visa applicant’s Statutory Declaration, it outlines the disadvantage and potential hardship which will be endured by all parties as well as the fact that there is a live nomination application currently with the department.

20. The Tribunal accepts the paragraph quoted below as accurate. It also accepts that as they explain in paragraph 3 of the Statutory Declaration, the Tribunal observed mutual respect and trust was demonstrated during the hearing and the Tribunal has some sympathy for the current situation. It appreciates that both the visa applicants and the nominator may face some hardship should the visa applicants be required to return to their home country. However, this does not alter the fact that an approved nomination must be linked to the visa, as per 186.223(2), in order for the visa to be approved. This is not currently the case.

    
    

    That is not currently the case.

21. The Tribunal is aware that the applicant will be unable to leave Australia at the present time due to the Covid-19 pandemic and the travel restrictions imposed by the Australian Government. It is also aware that appropriate actions have been implemented by the department to accommodate these circumstances which are clearly not of the applicant’s making.

22. The Tribunal has not sought additional information as it is clear the applicant cannot satisfy an essential criterion as the nomination is not approved.

    Nomination of a position

23. 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.

24. 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.

25. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 186.223(2) of Schedule 2 of the Regulations.

26. Therefore, cl.186.223 is not met.

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

    decision

28. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    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.