Kokkelkoren (Migration)

[2019] AATA 4497

Kokkelkoren (Migration) [2019] AATA 4497 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cindy Therese Kokkelkoren

CASE NUMBER:  1723245

HOME AFFAIRS REFERENCE(S):           BCC2017/180004

MEMBER:De-Anne Kelly

DATE:3 October 2019

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 criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

Statement made on 03 October 2019 at 4:15pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – nomination refused – signed employment contract – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233

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 and Border Protection on 18 September 2017 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 14 January 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 the Direct Entry stream, to work in the nominated position of Sales Representative (Industrial Products) – 225411.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the delegate of the Minister had not approved the nomination.

6. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the State Manager for the business and employees from the business namely, Mr Fox, Mr Luchetti, Ms Maier and Ms Murray.

7. The applicant was represented in relation to the review.

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 applicants meet cl.186.233.

   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 visa application was acknowledged by the Department on 14 January 2017, and is consistent with the declaration in s.1114B(3)(d) of Schedule 1 being made in the application for the grant of the visa.

13. The State Manager of The Trustee for the Dotmar PBE Unit Trust made the nomination and signed the Employment Contract demonstrating that he is the person who will employ the applicant and is the person who made the nomination. The application made was for the approval of the position of Sales Representative (Industrial Products) – 225411.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by the State Manager of The Trustee for the Dotmar PBE Unit Trust

15. There is no information before the Tribunal constituting adverse information regarding the company or its State Manager. There is no evidence before the Tribunal that the Department had adverse information regarding the State Manager of The Trustee for the Dotmar PBE Unit Trust, being the person who made the nomination or their associates.

16. The most recent employment contract dated 10 August 2016 and signed by both the nominator and the applicant demonstrate that the position is still available to the applicant. The visa application was made on 14 January 2017, and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.186.233 is met.

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

    DECISION

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

    ·cl.186.233

    De-Anne Kelly
    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.