Ida (Migration)

[2022] AATA 4862

Ida (Migration) [2022] AATA 4862 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yuri Ida
Mr Mitsuhiro Ida
Miss Sakura Ida
Mr Yuan Ida

REPRESENTATIVE:  Mr Michael Thomson

CASE NUMBER:  1907767

HOME AFFAIRS REFERENCE(S):          BCC2018/934883

MEMBER:Terrence Baxter

DATE:10 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of the first named, third named and fourth named applicants, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

The Tribunal does not have jurisdiction in the
 matter of the second named applicant.

Statement made on 10 November 2022 at 9:00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Marketing Specialist –nomination approved –subject of an approved nomination – second named applicant was not in the migration zone when the review application was lodged – no jurisdiction in the matter of the second named applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 347, 338
Migration Regulations 1994, rr 2.25, Schedule 2, cls 186.223

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 26 March 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 February 2018. 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 (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 Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist for Go Australia Group Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required that she be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 15 March 2019 and that accordingly cl 186.223(2) was not met, and that the applicant did not satisfy the requirements of cl 186.223 as a whole.

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 1 April 2019.

8. The applicant appeared before the Tribunal by video conference on 27 July 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application of the nominator.

9. The Tribunal exercised its discretion to hold the hearing by video conference.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined that it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants.  The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just economical and quick, and the delay to the matter if the hearing was not conducted by video conference.

10. The applicants were represented in relation to the review by their legal practitioner Mr Michael Thomson of Fullagar Chambers from 20 June 2022. The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. 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 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.

14. 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 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.

15. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Marketing Specialist approved, with the applicant as nominee, on 26 February 2018.  The nomination application was refused on 15 March 2019 and the nominator sought review of that decision with the Tribunal on 25 March 2019.

16. On 10 November 2022, 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 nominator.

17. Therefore, cl 186.223(2) is met in respect of the applicant.

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

19. The third named and fourth named applicants applied on the basis that each of them is a member of the family unit of the applicant. Their applications will also be determined on remittal to the Department for reconsideration.

20. In relation to the second named applicant, s 347(3) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s 338(2), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the application for review is made.  Section 338(2) provides that a decision to refuse to grant a non-citizen a permanent visa is a Part 5 reviewable decision if the non‑citizen made the application for the visa at a time when the non‑citizen was in the migration zone and the visa is a visa that could be granted while the non-citizen is in the migration zone.  "Migration zone" is defined in s 5(1) of the Act and, generally speaking, means the Australian states and territories.

21. The movement records of the Department show that the second named applicant was in the migration zone when the application was made (27 February 2018) but was not in the migration zone when the review application was lodged (1 April 2019).  A Subclass 186 visa is a visa that can be granted when a non-citizen is either inside or outside the migration zone.  The second‑named applicant was outside the migration zone when the review application was made.

22. On 13 June 2022 the Tribunal wrote to the applicants at their email address regarding the application made by the second named applicant.  The Tribunal advised the applicants that, in order for the second named applicant to have made a valid application, he must have been in Australia at the time of the review application.  The Tribunal also advised the applicants that it appeared that the second named applicant was not in Australia on 1 April 2019 and that his application may not be a valid application.  The applicants were invited to make comments on whether he had made a valid application.

23. On 1 July 2022 the representative advised the Tribunal that the second named applicant would not be attending the hearing. The applicants provided a hearing response to that effect. At the hearing, the applicant confirmed that the second named applicant was not in Australia on the date of the lodgement of the review application, 1 April 2019. The representative acknowledged that the Tribunal did not have jurisdiction in the matter of the application by the second named applicant.

24. The Tribunal finds that the application for review by the second named applicant is not an application properly made under s 347 of the Act and the Tribunal does not have jurisdiction in the matter of that application.

    DECISION

25. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of the first named, third named and fourth named applicants, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

26. The Tribunal does not have jurisdiction in the matter of the second named applicant.

    Terrence Baxter
    Member

    
    

    ATTACHMENT A

    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.