Harris (Migration)

[2018] AATA 3386

Harris (Migration) [2018] AATA 3386 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sophie Rosemary Harris
Mr James Lewis

CASE NUMBER:  1615872

DIBP REFERENCE(S):  BCC2016/1226849

MEMBER:Alison Mercer

DATE:27 July 2018

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 27 July 2018 at 5:10pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.233(3)

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 and Border Protection on 21 September 2016 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 20 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 (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 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. 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 visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by the originally nominating employer, which has not been withdrawn and the position is still available to the applicant. The delegate found that the nomination made by the applicant’s employer, The Key Branding Pty Ltd, had been refused on 19 August 2016. Accordingly, the applicant did not satisfy cl.186.233(3) and did not meet cl.186.233 as a whole. The delegate found that the second named applicant (the partner of the applicant) did could not be granted a subclass 186 visa either, as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that he met the primary visa criteria in his own right.

6.    The Tribunal received a review application from the applicants on 28 September 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Dr Etienne Hugo, to be their representative and authorised recipient for correspondence.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Nomination of a position

9. For applicants 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, an 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

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.

1. The Department’s records indicate that the applicant’s employer, The Key Branding Pty Ltd, made an application to have the position of Marketing Specialist approved, with the applicant as the nominee, with the Department on 9 February 2016.  This nomination application was refused on 9 August 2016 and the employer sought review of that decision with the Tribunal on 9 September 2016.  On 27 July 2018, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by The Key Branding Pty Ltd (see AAT/MRD decision 1614552 of 27 July 2018).

2. Accordingly, the Tribunal is satisfied that:

   ·the person (in this case, business) that will employ the applicant is The Key Branding Pty Ltd, who made the nomination application;

   ·that nomination has been approved and has not been withdrawn;

   ·from a review of the Department’s Integrated Client Services Environment electronic records, 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);

   ·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.

3. Given the above, the Tribunal is satisfied that cl.186.233 is met by the applicant.

4. As the second applicant applied on the basis that he is a member of the family unit of the applicant, his application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

   DECISION

5. 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.

   Alison Mercer
   Member