Foley (Migration)

[2020] AATA 4707

Foley (Migration) [2020] AATA 4707 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thomas William Foley
Ms Anne Jane Davidson Lloyd

CASE NUMBER:  1819945

HOME AFFAIRS REFERENCE(S):          BCC2016/3400759

MEMBER:Warren Stooke AM

DATE:5 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 November 2020 at 5:38pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream, to work in the nominated position of Marketing Specialist – ANZSCO 225113 – nomination refused – primary applicant no longer eligible – secondary applicant subsequently ineligible – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 186.311, 187.233, rr 1.13A, 1.13B

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 29 June 2018 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 13 October 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 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 Marketing Specialist – ANZSCO 225113.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 31 May 2018 the nomination lodged by OUT OF THE BOX SOLUTIONS PTY LTD referred to in paragraph 186.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

6. The secondary applicant, Ms Anne Jane Davidson Lloyd, appeared before the Tribunal on 5 November 2020 to give evidence and present arguments.

7. On 7 October 2020, the Tribunal received a response from the secondary applicant, who advised that she would attend the scheduled hearing and that the primary applicant would not attend on the basis that he is currently incarcerated in Middleton Prison.

8. The secondary applicant stated that she emailed the Department decision to the primary applicant and that she understood the visa application was refused based on the business.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in the present case are whether the first named applicant is the subject of an approved nomination and whether the second named applicant meets the criteria for the visa as a member of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

11. The secondary applicant provided evidence that the primary applicant was in the Middleton Prison in Castlemaine for a drug related offence and conviction on 28 September 2017.

12. The secondary applicant provided evidence that she is no longer in a relationship with the primary applicant and that they ‘broke-up’ in 2018.

13. The Tribunal informed the secondary applicant that if she was no longer a member of the family unit of the primary applicant then this would have implications in relation to the requirements of cl.186.311 and did she understand that. The secondary applicant responded: “Yes” and stated that she was now in a relationship with someone else and had left Australia prior to the current pandemic to make an application offshore for a family partner visa.

14. The secondary applicant provided evidence that she is not in a position to comment on the primary applicant’s nomination concerning his employment.

    Nomination of a position

15. 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.

16. 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.

17. In the absence of any formal evidence or submissions from the primary applicant to the Tribunal following the application of appeal, the Tribunal is satisfied that the primary applicant has not met the requirements of cl.186.233 for the grant of a 186 visa and that the finding of the delegate should be affirmed.

18. Therefore, cl.186.233 is not met.

19. Further, on the basis that the primary applicant does not meet the criteria for the grant of a 186 visa, it follows that the secondary applicant is not a member of a family unit that has met the requirements for the grant of a 186 visa and thereby has not met the requirements of cl.186.311.

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

    DECISION

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

    Warren Stooke AM
    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.