Jones (Migration)

[2022] AATA 3619

Jones (Migration) [2022] AATA 3619 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Matthew James Charles Jones

REPRESENTATIVE:  Mr Beau Timothy John Hartnett

CASE NUMBER:  1922111

HOME AFFAIRS REFERENCE(S):          BCC2018/1750901

MEMBER:Terrence Baxter

DATE:18 October 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

Statement made on 18 October 2022 at 9:16am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – carpenter – subject of approved position nomination – related nomination application refused – joint hearing of nomination and visa reviews – nomination refusal set aside – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 29 July 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 April 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Carpenter for Blue Wren Holdings Pty Ltd (the nominator).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 31 May 2019 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 9 August 2019.

7. The applicant appeared before the Tribunal by video conference on 2 August 2022 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application by the nominator.

8. The Tribunal exercised its discretion to hold the hearing by videoconference through MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 to be conducted by videoconference.

9. The applicant was represented in relation to the review by his legal practitioner Mr Beau Timothy John Hartnett of Ausway Migration from 9 July 2022. The representative attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. 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.

13. 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.

14. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Carpenter approved, with the applicant as nominee, on 20 April 2018. The nomination application was refused on 26 April 2019 and the nominator sought review of that decision with the Tribunal on 15 May 2019.

15. On 18 October 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 Blue Wren Holdings Pty Ltd.

16. Therefore, cl 186.223(2) is met.

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

    DECISION

18. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

    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:

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

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.