Igasto (Migration)

[2019] AATA 6667

Igasto (Migration) [2019] AATA 6667 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Christina Maria Olivia Igasto
Mr Olof Pontus Jonas Igasto

CASE NUMBER:  1802001

HOME AFFAIRS REFERENCE(S):          BCC2017/2336987

MEMBER:Alan McMurran

DATE:7 November 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.186.233(3) of Schedule 2 to the Regulations; and

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

·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 07 November 2019 at 12:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – ICT Business Analyst – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 25 January 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 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 30 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Business Analyst (ANZSCO 261111).

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.

6. The applicants appeared before the Tribunal on 6 November 2019 in a combined hearing with a review of the nomination refusal, to give evidence and present arguments. The Tribunal received oral evidence from the applicant, a director of the nominator, and from the secondary applicant together with submissions received from the agent representing (Rebecca Wallace).

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of the nomination for the position of ICT Business Analyst which the Minister has approved.

   Nomination of a position

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

11. 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.

12. The Tribunal has had regard to the information in support of the application on the Department case file[1] , the Tribunal’s case file and the written and oral submissions from the representative, together with the evidence obtained at the hearing. In that regard, the Tribunal notes the written submissions received by email in the Tribunal on 29 October 2019, in response to an invitation from the Tribunal dated 21 October 2019.

    [1] BCC 2017 2336987

13. In consideration of that information, the Tribunal finds and is satisfied that the person who will employ the applicant (Customer Crunch Pty Ltd) is a person who made the nomination application.[2]

    [2] See T case file 1732239 and Dept case file BCC2017 2335640

14. On 6 November 2019, following a hearing in the Tribunal, the Tribunal made a decision setting aside the nomination refusal and substituting a decision approving the nomination. The Tribunal finds the nomination has now been approved, and has not subsequently been withdrawn.

15. The Tribunal has had regard to the information available from the applicant and the Department. There is no evidence before the Tribunal of any adverse information known to Immigration either concerning the nominator, or any person associated with the nominator. The Tribunal asked questions of the applicant and the nominator at the hearing concerning details of any adverse information about any offences under a Commonwealth, State or Territory Law or in relation to any competent authority or any administrative action or warning, such as from Immigration, and noting the nominator has been approved as a standard business sponsor since 22 May 2018. The nominee is currently the subject of a subclass 457 visa approved by the Minister, and which expires in September 2022. The Tribunal finds it is satisfied there is no adverse information in connection either with the nominator or the applicant, or any person associated with either of them.

16. The nominator was asked at the hearing about the availability of the nominated occupation to the applicant who is currently employed in the position, and has been so employed since 1 January 2018. The nominator confirmed the applicant is still employed in that occupation and will continue to be so from the nominator’s perspective and subject to any visa approvals issued by the Department for the applicant.

17. The Tribunal further notes that the visa application was not made more than 6 months following approval of the nomination of the occupation.

18. For these reasons, the Tribunal is satisfied that the applicant now meets the criteria in relation to the position to which the application relates following the approved nomination.

19. Therefore, cl.186.233 (3) is met.

    Secondary applicant

20. The second named applicant is the spouse of the first named applicant and a family member. The second named applicant must meet the secondary criteria under regulation 186.311 which requires the secondary applicant to be a member of the family unit of the primary applicant who holds a subclass 186 visa and satisfies the primary criteria for the grant of the visa, and having made a combined application with the primary applicant.[3]

    [3] r. 186.311 (a) and (b)

21. The Tribunal is satisfied the second named applicant is a member of the family unit of the primary applicant and cl. 186.311(a) and (b) is met. The Tribunal has made no other findings in relation to the remaining criteria and remits the application by the second named applicant to the Department for consideration.

    Summary

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

    DECISION

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

    The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second named applicant meets 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 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.