Honkisz (Migration)

[2019] AATA 2270

Honkisz (Migration) [2019] AATA 2270 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maciej Robert Honkisz
Ms Sara Saccon

CASE NUMBER:  1817455

HOME AFFAIRS REFERENCE(S):           BCC2017/1961581

MEMBER:Katie Malyon

DATE:7 June 2019

PLACE OF DECISION:  Sydney

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.186.223(2) of Schedule 2 to the Regulations.

Statement made on 07 June 2019 at 3:08 pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – not subject of approved nomination – tribunal approved nomination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223(2), rr 1.13A, 1.13B, 5.19(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 Home Affairs on 12 June 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 2 June 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 – Polish national Mr Maciej Robert Honkisz - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visas on the basis that Mr Honkisz did not meet cl.186.223(2) of Schedule 2 to the Regulations because he was not the subject of an approved nomination by his nominator and current employer , LPR Promotions Pty Ltd (the Company).  There was no approved nomination because, on 2 May 2018, the Department had refused the nomination application lodged by the Company.

6. On 7 June 2019, the Tribunal held a combined hearing of the refusal of the applicants’ Subclass 186 visa applications together with the refusal of the Company’s nomination application (File No. 1814486).  The applicants appeared before the Tribunal to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, who also attended 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 Mr Honkisz meets the requirements of cl.186.223(2) of Schedule 2 to the Regulations.

   Nomination of a position

9. Clause 186.223 as applicable in this case is set out in full in the Attachment to this decision. Essentially, it requires that the position to which the visa application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant.  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.

10. In addition, this criterion also requires that:

    ·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 of the Regulations); 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 6 months after the nomination of the position was approved.

11. On 7 June 2019, the Tribunal made an oral decision to set aside the delegate’s decision of 2 May 2018 to refuse the Company’s nomination and, instead, it approved the nomination made under r.5.19(3) of the Regulations in respect of the nominated position of Café or Restaurant Manager ANZSCO 141111 for nominee Mr Honkisz. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is now met by Mr Honkisz.

12. Given this finding, the appropriate course is to remit Mr Honkisz’s Subclass 186 visa application to the Minister to consider the remaining criteria for grant of the visa.

13. The second named applicant, Ms Sara Saccon, is Mr Honkisz’s partner.  She applied for her Subclass 186 visa on the basis of being a member of the family unit of Mr Honkisz.  As such, her application will be determined by reference to the outcome of Mr Honkisz’s application on remittal to the Department for reconsideration.

    DECISION

14. 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.186.223(2) of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Part 186

    …

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position is still available to the applicant.

    (5)    The application for the visa is made no more than 6 months after the Minister approved the nomination.

    oOOo