Francis (Migration)

[2022] AATA 4294

Francis (Migration) [2022] AATA 4294 (28 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr James Antony Arockia Francis (applicant)
Mrs Jyoti Francis (second applicant)
Master John Francis (third applicant)

REPRESENTATIVE:  Mrs Jiwanpreet Jiwanpreet (MARN: 1686571)

CASE NUMBER:  2101718

HOME AFFAIRS REFERENCE(S):          BCC2020/2720752

MEMBER:Jane Bell

DATE:28 November 2022

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 28 November 2022 at 1:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – software engineer – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

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 9 February 2021 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 27 November 2020. 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 Direct Entry stream, to work in the nominated position of Software Engineer (ANZSCO 261313).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had an approved nomination with his employer, which had not ceased.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.  

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 has an approved nomination for a position with his employer, which has not ceased.

   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 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 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. It is not disputed that the applicant’s employer did not have an approved nomination in respect of the applicant at the time of the Department’s decision.

13. However, the Tribunal is satisfied that the employer lodged a review application with the Tribunal in relation to the refusal of its nomination of the applicant for the position of Software Engineer.  On 28 November 2022, the Tribunal set aside the Department’s refusal decision and substituted a decision approving the nomination application by the nominator in the Direct Entry stream that identifies the applicant and the position of Software Engineer for the applicant.

14. Accordingly, the Tribunal is satisfied on the basis of the evidence before it that:

    ·the position of Software Engineer to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream;

    ·the position of Software Engineer was the one that was the subject of the declaration made as part of the current visa application;

    ·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 reg 1.13A and reg 1.13B);

    ·the position is still available to the applicant based on the evidence from the applicant’s employer and the Employment Agreement dated 2 July 2021 which states that the applicant will work in the nominated position as a paid employee, evidence confirming a genuine need for the position, the Organisational Chart which confirms that the position continues to fit into the business activity, the applicant’s position description, recent payslips and ATO Business Activity Statements, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

15. Therefore, cl 186.233 is met.

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

17. The delegate made a decision that the second and third named applicants did not satisfy cl 186.311, which requires that they be a member of a family unit of a person (the applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having a combined application with the applicant.

18. The Tribunal notes that the second and third applicant’s application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration. 

    DECISION

19. The Tribunal remits the applications 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.

    Jane Bell
    Member

    
    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.