GUEDES (Migration)

[2021] AATA 2186

GUEDES (Migration) [2021] AATA 2186 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PAULO GUEDES
Mrs INDIRA DE MELLO IZIDORO

CASE NUMBER:  1827505

HOME AFFAIRS REFERENCE(S):          BCC2017/3991926

MEMBER:Susan Reece Jones

DATE:21 May 2021

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(2) of Schedule 2 to the Regulations.

Statement made on 21 May 2021 at 5:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Marketing Specialist – tribunal set aside nomination decision–nomination approved –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, 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 Home Affairs on 17 September 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 28 October 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 (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) for the nominator Got Game Pty Ltd.

5. The delegate refused the application on the basis the applicant’s nomination of the nominee by Got Game did not meet cl.186.233 of the Regulations because the applicant failed to provide evidence in support of the need for a paid employee to work in the position under the direct control of the applicant.

6. The applicant appeared before the Tribunal on 29 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sole director, Mr Jedrzej Kram.

7. The applicant was represented in relation to the review by its migration agent, Mr Harbir Singh of Alex Rayan Nindra & Co.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 relevant nomination has been approved as required by cl.186.233.  

    Nomination of a position

11. 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.

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. The applicant applied for a visa on the basis of a nomination made by GOT GAME PTY LTD. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 17 September 2018. 

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 7 May 2021, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.233(2).

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. As the Tribunal is remitting the application of the visa applicant with a finding that he meets the requirements of clause.186.233(2), the remaining criteria for the applicant should now be reconsidered.

18. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.186.233(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second named visa applicant should also now be reconsidered in full.

    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.

    Susan Reece Jones
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.