Harnden (Migration)

[2018] AATA 2020

Harnden (Migration) [2018] AATA 2020 (15 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alex Harnden

CASE NUMBER:  1618601

DIBP REFERENCE(S):  BCC2016/1119763

MEMBER:Ian Berry

DATE:15 May 2018

PLACE OF DECISION:  Brisbane

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

· Clause 186.233 of schedule 2 to the Regulations.

Statement made on 15 May 2018 at 3:39pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Economist – Nomination approved – Subject of an approved nomination – Decision under review remitted

LEGISLATION
Migration Act 1958, s 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 Immigration on 21 October 2016 to refuse to grant the review applicant (applicant) an Employer Nomination (Permanent) (Class EN) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 March 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 (Regulations).  The primary criteria must be satisfied by the applicant.  The applicant 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 Economist.  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 as the nomination of the position had not been approved.

6. The applicant appeared before the Tribunal on 13 April 2018 to give evidence and present arguments.

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

8. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements in cl. 186.233.

   Nomination of a position

10. For an applicant 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, and 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.

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 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.

12. The applicant’s nominating employer OCS International Pty Ltd, applied to the Department for the approval of the position of ‘Economist’.  The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

13. On 19 April 2018, the Tribunal sets aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant.

14. On the material before it, the Tribunal is satisfied that; the person who will employ the applicant was the nominator in the application for approval; that the appointment has been approved under r.5.19; that it has not been withdrawn and at the time of decision, the criteria for approval in r.5.19(4) continues to be met; that the appointment is still available to the applicant and that the application was made no more than six months after the nomination of the position was approved.

15. Accordingly, given the Tribunal’s findings in respect of subclauses 186.233 (1),(2),(4),(5) and(6), the Tribunal finds that the applicant meets the requirements of cl.186.233.

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

    DECISION

    The Tribunal remits the application for 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.

    Ian Berry
    Member