Eltawila (Migration)

[2018] AATA 2802

Eltawila (Migration) [2018] AATA 2802 (28 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramadan Mosad Ramadan Eltawila

CASE NUMBER:  1619590

DIBP REFERENCE(S):  BCC2016/709499

MEMBER:Alan McMurran

DATE:28 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the 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 28 June 2018 at 1:06pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream –Teacher of English to Speakers of Other Languages – Nomination approved by tribunal – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65,

Migration Regulations 1994, Schedule 2, rr 1.13a, 1.13b, 5.19(2), 5.19(4)(h)(i), cl 186. 233

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 10 November 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 February 2016. 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Teacher of English to Speakers of Other Languages. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination by his nominating employer, Jasmine Education Group Pty. Ltd., was not approved.

6. The applicant applied to the Tribunal on 21 November 2016 for review of the delegate’s decision and included a copy of the primary decision record with the review application.[1]

   [1] T file , f 14-16

7. The Tribunal has available to it the departmental file[2] relating to the applicant, the delegate’s decision and the Tribunal’s file, and the related Tribunal file for the nominator[3], which includes the Tribunal’s decision in that case, made 22 June 2018.

   [2] BCC 2016/709499, F1-123

   [3] Jasmine Education Group Pty Ltd 1619590

8. The applicant was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl. 186. 233. This subclause requires for applicants in the Direct Entry stream that the position to which the application relates is the subject of an application for approval of a nomination under subregulation 5.19(4)(h)(i), which is for direct entry nomination not specific to regional Australia.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

12. 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.

13. In his visa application, the applicant set out details of the associated nomination for the position of Teacher of English to Speakers of Other Languages by the nominator, Jasmine education group Pty Ltd[4], including the declarations required. The Tribunal finds that the nominated position related to the application meets the requirements of subclause 186.233 (1)(a) and186.233(1)(b)

    [4] D file f 112-123

14. In addition, the Tribunal finds the position to which the application relates is the position nominated in an application that meets the requirements of subregulation 5.19(4) as in force after 1 July 2012, and the subject of the required declaration.

15. The Tribunal finds that the nominator, Jasmine Education Group Pty Ltd is the entity that will employ the applicant, being the nominator in the application for approval. The Tribunal finds it is satisfied subclause 186.233(2) is met.

16. On 22 June 2018, the Tribunal approved the application for the nomination of a position by the nominator, Jasmine Education Group Pty Ltd, under regulation 5.19 and the Tribunal finds that the requirement in subclause 186.233(3) is also met.

17. The Tribunal finds the nomination has not been withdrawn and the requirement in subclause 186.233 (4) has been met.

18. The Tribunal has no evidence before it of any adverse information known to the Department or any person associated with the nominator, as specified in regulation 1.13a and regulation 1.13b.

19. Having considered the Tribunal’s file[5] dealing with the nomination application by the nominator, the Tribunal finds the position of Teacher of English to Speakers of Other Languages (ANZSCO 249311) is still available to the applicant and subclause 186.233 (5) is met, as is subclause 186.233 (6), the application having been made not more than 6 months after the approval of the nomination.

    [5] 1617503

20. Therefore, cl.186.233 is met.

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

    DECISION

22. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations;

    Alan McMurran
    Member