Irving (Migration)

[2017] AATA 1252

Irving (Migration) [2017] AATA 1252 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Allan Irving
Mrs Rene Irving
Miss Nicole Irving

CASE NUMBER:  1512794

DIBP REFERENCE(S):  BCC2015/632873

MEMBER:Alison Mercer

DATE:28 July 2017

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 28 July 2017 at 3:19pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Subject of approved nomination – Maintenance Planner – Nomination refusal set aside by tribunal

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 186.223, r 5.19(3), r 1.13A, r 1.13B

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 Immigration on 4 September 2015 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 to the Department of Immigration for the visas on 26 February 2015. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Maintenance Planner. This stream is designed for subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same role.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination. The delegate found that the nomination made by the applicant’s employer, Louis Dreyfus Commodities Australia Pty Ltd, had been refused by the Department on 31 July 2015. The delegate refused to grant visas to the second and third named applicants (the applicant’s wife and daughter) as they were not members of the family unit of a person who held a subclass 186 visa.

6. The applicants sought review of the refusal decisions on 17 September 2015.  The review application to the Tribunal was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Lucy Nguyen, as their representative and authorised recipient for correspondence.

7. The applicants appeared before the Tribunal by videoconference on 19 May 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant subclass 457 visa holder, and 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); 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. The Tribunal is satisfied from the Department’s records that the applicant was identified in the nomination as the relevant subclass 457 visa holder, and the position is the one that was the subject of the declaration that was required to be made as part of the current visa application.

12. The Tribunal notes that the Department made a decision on 31 July 2015 to refuse to approve the nomination of the applicant made by Louis Dreyfus Commodities Australia Pty Ltd in the Temporary Residence Transition stream.  The applicant’s employer sought review of that decision at the Tribunal, and on 28 July 2017, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination (see AAT MRD decision 1511428).  Accordingly, the Tribunal is satisfied that the nomination is approved and has not been withdrawn.

13. Moreover, after receiving oral evidence from authorised officers of Louis Dreyfus Commodities Australia Pty Ltd at a hearing for that review application held on 19 May 2017, and written evidence post-hearing, the Tribunal is satisfied that the position is still available to the applicant.

14. The Tribunal found in paragraphs 53 to 56 of its decision AAT MRD 1511428 in relation to the nomination that it was satisfied that there was no adverse information known to Immigration about Louis Dreyfus Commodities Australia Pty Ltd. 

15. Finally, the Tribunal is satisfied that the visa applications were not made more than 6 months after the nomination was approved.

16. Therefore, the Tribunal is satisfied that cl.186.223 is met by the applicant.

17. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.  As the second and third named applicants applied on the basis that they are the applicant’s family unit members, the outcome of their applications will be dependent on the outcome of the applicant's application upon remittal to the Department.

    DECISION

18. 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.186.223 of Schedule 2 to the Regulations.

    Alison Mercer
    Member