Diener (Migration)

[2019] AATA 4500

Diener (Migration) [2019] AATA 4500 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Liesel Ana Diener
Dr Johannes Cornelius Kruger
Master Armand August Kruger
Master Ludwig Finn Kruger

CASE NUMBER:  1724575

HOME AFFAIRS REFERENCE(S):           BCC2017/781230

MEMBER:C. Packer

DATE:4 October 2019

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 following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations

Statement made on 04 October 2019 at 11:36am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – nomination refused – currently works on contract basis in position – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233, r 5.19

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 Immigration and Border Protection on 4 October 2017 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 27 February 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of General Practitioner (ANZSCO 253111) located at Numurkah.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations.

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

6. 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

7. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

8. 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 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.

9. On 4 October 2019 in Tribunal case 1721831 the Tribunal found the nominator, AKA Services Pty Ltd, meets the requirements of r.5.19 for approval of the nomination of the position in Australia. The Tribunal set aside the delegate’s decision to refuse the nomination application under review and substituted a decision approving the nomination.

10. Based on the material before the Tribunal, the Tribunal is satisfied AKA Services Pty Ltd which is the entity that made the nomination, will employ the applicant. Based on the material before the Tribunal including information from the Department, 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). The Tribunal is also satisfied the applicant currently works on a contract basis in the position and so the position is still available to the applicant, and the visa application was made on 27 February 2017 which was the same date the nominator applied for approval of the nomination of a position in Australia under r.5.19.

11. Therefore, cl.187.233 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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:

    ·cl.186.233 of Schedule 2 to the Regulations

    C. Packer
    Member