DOBYSHEVA (Migration)

[2018] AATA 5687

DOBYSHEVA (Migration) [2018] AATA 5687 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Elena DOBYSHEVA
Mr Dmitrii Dobyshev

CASE NUMBER:  1713570

HOME AFFAIRS REFERENCE(S):           BCC2016/3707299

MEMBER:Michael Cooke

DATE:20 December 2018

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:

·cl.186.233(5) of Schedule 2 to the Regulations

Statement made on 20 December 2018 at 3:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – ICT Business Development Manager – employer nomination approved – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.233(5)

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 15 June 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 15 June 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 the Direct Entry stream, to work in the nominated position of ICT Business Development Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(5) of Schedule 2 to the Regulations because the nomination of the applicant’s nominator (O-Lin Lights Pty Ltd) was refused and the position was no longer available.

6. The applicant appeared before the Tribunal on 10 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer’s spokesperson (Ms Olga Goudz).

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the occupation is still available to the applicant.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal approved the employer nomination of O-Lin Lights Pty Ltd (AAT 1711861) on 20 December 2018.

13. Therefore, as the position is still available to the applicant cl.186.233(5) is now met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. 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.186.233(5) of Schedule 2 to the Regulations; and

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.