Hawkins (Migration)

[2018] AATA 4285

Hawkins (Migration) [2018] AATA 4285 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sally Megan Hawkins
Mr Clive Charles Hawkins

CASE NUMBER:  1621034

HOME AFFAIRS REFERENCE(S):           BCC2016/828764

MEMBER:Susan Trotter

DATE:28 September 2018

PLACE OF DECISION:  Brisbane

DECISION: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

Statement made on 28 September 2018 at 12:39pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – subject of an approved nomination – nomination approved – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 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 then Minister for Immigration and Border Protection[1] (the Minister) on 1 December 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

   [1] Now the Minister for Immigration, Citizenship and Cultural Affairs

2. The applicants applied for the visas on 29 February 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 Homeopath.

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, Sally Hawkins Pty Ltd, had been refused on 19 November 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) 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 applicant lodged an application for review of the delegate’s decision with the Tribunal on 9 December 2016.

7. The applicants were represented in relation to the review by their registered migration agent.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal.

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 applicant meets the requirements of cl.186.233.

11. 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) as it was then.

12. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)  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;

    (d)  the position is still available to the applicant; and

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

13. Records of the Department of Home Affairs (the Department) indicate that the applicant’s employer, Sally Hawkins Pty Ltd, made an application to have the position of Homeopath approved, with the applicant as the nominee, with the Department on 29 February 2016. This nomination application was refused on 19 October 2016 and Sally Hawkins Pty Ltd sought review of that decision with the Tribunal on 9 December 2016. On 28 September 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 Sally Hawkins Pty Ltd.

14. Accordingly, the Tribunal is satisfied that:

    (a)  the person (in this case, business) that will employ the applicant is Sally Hawkins Pty Ltd, who made the nomination application;

    (b)  that nomination has been approved and has not been withdrawn;

    (c)  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);

    (d)  the position is still available to the applicant; and

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

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

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

    Conclusion

17. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

    DECISION

18. 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

    Susan Trotter
    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.