Hutcheson Clelland (Migration)

[2022] AATA 2991

Hutcheson Clelland (Migration) [2022] AATA 2991 (22 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dean David Hutcheson Clelland
Mrs Shannon Christine Hutcheson Clelland
Ms Demi Hutcheson Clelland

REPRESENTATIVE:  Mr Andre Pierre Burger (MARN: 9801665)

CASE NUMBER:  1917195

HOME AFFAIRS REFERENCE(S):          BCC2018/1852916

MEMBER:Alan McMurran

DATE:22 July 2022

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 186.233(3) of Schedule 2 to the Regulations; and

·cl 186.233 of Schedule 2 to the Regulations.

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

· cl 186.311 of Schedule 2 to the Regulations

Statement made on 22 July 2022 at 3:30pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Cabinetmaker – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.233, 186.311; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged on 28 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 April 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The second and third named applicants (“the secondary applicants”) are members of the family unit of the first-named applicant. All are citizens of the Republic of South Africa.

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 (Cth) (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 Cabinetmaker (ANZSCO 394111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, because the Minister has not approved the nomination by Eccosit Industries Pty Ltd ATF the Eccosit Unit Trust (“the nominator”). The nomination application was refused by the Department on 1 May 2019.

6. The applicants were represented in relation to the review by their registered migration agent, Mr Andre Burger.

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 the applicants are the subject of a nomination which has been approved.

   Nomination of a position

9. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

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 reg 1.13A and reg 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.

11. On 22 July 2022, the Tribunal on review set aside the Department decision in the nomination application by the nominator and substituted a decision that the nomination is approved. The Tribunal finds therefore that the applicant now satisfies cl 186.233(3) of Schedule 2 to the Regulations.

12. The Tribunal further finds on the available information that:

    ·The nomination has been approved and has not been subsequently withdrawn.

    ·The nominator is the person who made the nomination and will employ the applicant in the position nominated.

    ·There is no information known to Immigration which is ‘adverse information’ about the nominator, or a person ‘associated with’ that person

    ·The applicant as nominee in the nomination application is currently employed in the nominated position, which position is still available to the applicant, and in respect of which the visa application was made no more than six months after the nomination of the position was approved. 

13. Therefore, cl 186.233 is met.

    Secondary applicants

14. The secondary applicants are members of the family unit of the applicant.

15. As the applicant is now the subject of a nomination which has been approved, the appropriate course is to remit the applications by the secondary applicants to the Department for further consideration.

    Conclusion

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

17. 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(3) of Schedule 2 to the Regulations; and

    ·cl 186.233 of Schedule 2 to the Regulations.

18. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.311 of Schedule 2 to the Regulations

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.