IKEDA (Migration)

[2021] AATA 120

IKEDA (Migration) [2021] AATA 120 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rie IKEDA

CASE NUMBER:  1815167

HOME AFFAIRS REFERENCE(S):          BCC2017/1741868

MEMBER:Susan Trotter

DATE:4 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 04 January 2021 at 2:35pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 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 8 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 May 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated occupation of Customer Service Manager for Hori International Trading Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the associated nomination had not been approved as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 May 2018.

7. The applicant was represented in relation to the review by her registered migration agent.

8. On 18 December 2020, the Tribunal invited the applicant to comment on or respond by 4 January 2021, to certain information before it, in particular information suggesting that the applicant is not, as required for the grant of the visa, the subject of an approved nomination, including because on 16 December 2020, the Tribunal (differently constituted) had affirmed the Department’s decision to refuse to approve the nominator’s nomination application.

9. On 30 December 2020, the applicant responded to the Tribunal’s invitation, via her representative, noting that the nominator would be appealing the nomination refusal and asking that a decision be made to affirm the visa refusal on the basis that there is no corresponding nomination.

10. The applicant has therefore consented to the Tribunal proceeding to make a decision on the review without appearing before it: subparagraph 360(2)(b) of the Act.

11. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    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:

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

    (b)  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;

    (c)   the position is still available to the applicant, and

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

15. As noted in the Tribunal’s 18 December 2020 invitation letter to the applicant, the evidence before the Tribunal is that the nomination application lodged by the nominator was refused by a delegate of the Department on 31 March 2018 and, on 16 December 2020, the Tribunal (differently constituted) affirmed the decision to refuse the nomination application.

16. On the evidence before it, the Tribunal finds that there is no approved nomination. The Tribunal is therefore not satisfied that the applicant meets the requirements of cl.186.223(2) as required at the time of decision.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Susan Trotter
    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.