Golan Orr (Migration)

[2020] AATA 749

Golan Orr (Migration) [2020] AATA 749 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shoshan Golan Orr
Mr Arik Golan
Ms Hadar Golan
Ms Mai Golan
Ms Netta Golan

CASE NUMBER:  1811944

HOME AFFAIRS REFERENCE(S):          BCC2016/4350074

MEMBER:Keith Kendall

DATE:20 March 2020

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; and

The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second, third, fourth and fifth named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 20 March 2020 at 6:52pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Accountant (General) ­– subject of an approved nomination ­­– nomination application now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 April 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 23 December 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 Accountant (General) (ANZSCO 221111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the applicant was not the subject of a nomination application which the Minister had approved.

6. The applicant appeared before the Tribunal on 12 February 2020 in the related nomination application for Chromagen Australia Pty Ltd to give evidence and present arguments. The secondary applicants did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.186.233(3) and is the subject of a nomination application that has been approved by the Minister.

   Nomination of a position

9. 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.

10. 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.

11. Following the hearing on 12 February 2020 in respect of the related nomination application, the Tribunal set aside the primary decision on 20 March 2020, substituting a decision approving the nomination.

12. The Tribunal, therefore, finds that the applicant meets the criterion in cl.186.233(3).

13. In addition, having regard to the information obtained at that hearing and having carefully reviewed the Tribunal’s file and the Department’s file, the Tribunal is satisfied that:

    ·Chromagen Australia Pty Ltd, as 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 about the applicant or any person associated with the applicant;

    ·The position is still available to the applicant; and

    ·The visa application was made by the applicant no more than six months following the nomination of the position, which was approved by the Tribunal on 20 March 2020.

14. Therefore, cl.186.233 is met

    Secondary applicants

15. The Tribunal finds that the secondary applicants are all members of the family unit of the applicant, who is an applicant for a Subclass 186 visa and who satisfies the primary criteria for the grant of the visa.

16. The Tribunal is further satisfied that the secondary applicants made a combined application with the applicant.

17. As a result, the Tribunal is satisfied that the secondary applicants satisfy cl.186.311.

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

    DECISION

19. 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 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second, third, fourth and fifth named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations.

    Keith Kendall
    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.