Dsouza (Migration)

[2022] AATA 1982

Dsouza (Migration) [2022] AATA 1982 (13 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Terrence Agnelo Dsouza
Ms Pattama Nakjinda
Miss Tanya Torpat Dsouza
Master Jayden Sid Dsouza

REPRESENTATIVE:  Mr Vikas Jain (MARN: 0958336)

CASE NUMBER:  1902855

HOME AFFAIRS REFERENCE(S):          BCC2017/697833

MEMBER:P. Maishman

DATE:13 June 2022

PLACE OF DECISION:  Perth

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 186.223 of Schedule 2 to the Regulations.

The applications for the second, third and fourth named applicants are remitted for reconsideration in accordance with this direction.

Statement made on 13 June 2022 at 11:06am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Customer Service Manager – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 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 Home Affairs on 24 January 2019 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 21 February 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 of Customer Service Manager (ANZSCO 149212).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination lodged by The Trustee for the Alphi Family Trust was not approved.

6. The first named applicant appeared before the Tribunal on 10 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s authorised spokesperson, Ms Sheba Alphonse.

7. The applicants were represented in relation to the review.

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 applicant meets cl.186.223 in Schedule 2 of the Regulations.

   Nomination of a position

10. 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.

11. 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 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.

12. The Tribunal has considered the documentary information and the oral evidence of the applicant and Ms Alphonse.

13. The applicant applied for the visa on the basis he was employed in relation to the nominated position with The Trustee for the Alphi Family Trust since December 2014 as the holder of a subclass 457 visa. The position was the subject of a nomination application The Trustee for the Alphi Family Trust made on 2o February 2017.

14. The nomination was initially refused by the Department. However, on 13 June 2022, this Tribunal decided to set aside the refusal and substituted a decision to approve the nomination (Case Number 1837322).

15. The Tribunal is satisfied the application relates to the position nominated in the application of The Trustee for the Alphi Family Trust to meet the requirements of reg 5.19(3); and in relation to which the applicant is identified as the holder of a subclass 457 visa and which a declaration mentioned in para 1114B(3)(d) was made.

16. Accordingly cl 186.223(1) is met.     

17. The Tribunal finds that on 20 May 2022, the nomination application by The Trustee for the Alphi Family Trust for the position of Customer Service Manager (ANZSCO 149212) was approved on review by the Tribunal.

18. Accordingly cl 186.223(2) is met.

19. The Tribunal is further satisfied and finds that the nomination has not been withdrawn and that the position is still available to the applicant, the visa application having been made no more than 6 months following approval of the nomination.

20. The Tribunal also finds on the available evidence from the hearing that 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).

21. Accordingly cl 186.223(3), (3A), (4), and (5) are met. 

22. Therefore, cl 186.223 is met.

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

24. The second, third and fourth named applicants applied for their visas on the basis of their being a member of the family unit of the first named applicant. Accordingly, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

25. Therefore, cl 186.223 is met.

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

    DECISION

27. 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.

28. The applications for the second, third and fourth named applicants are remitted for reconsideration in accordance with this direction.

    P. Maishman
    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.