Kukk (Migration)

[2019] AATA 5067

Kukk (Migration) [2019] AATA 5067 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Martin Kukk
Mrs Heleri Kukk
Mr Robin Kristofer Kukk
Ms Gretelyn Kendra Kukk
Ms Keitlyn Desiree Kukk

CASE NUMBER:  1818276

HOME AFFAIRS REFERENCE(S):           BCC2017/2959924

MEMBER:Mr S Norman

DATE:28 October 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.186.223(2) of Schedule 2 to the Regulations

Statement made on 28 October 2019 at 1:42pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination refused – related nomination application approved – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 186.233, r 5.19

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 18 June 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 17 August 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 Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager (ANZSCO: 131112). The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations – nomination.

5. The applicants appeared before the Tribunal on 24 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ian Bannister (the General Manager of the nominator).

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

7. 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

8. 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.

9. 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.

10. The applicant’s nominator lodged a nomination approval application online on 16 August 2017 in relation to the nominated occupation of “Sales and Marketing Manager” (ANZSCO: 131112). The application was listed as Temporary Residence Transition Stream and the application referred to the nominee (the applicant in this case), who was identified on Department systems as the holder of a Subclass 457 (Business (Long Stay)) visa holder at the time of application.

11. On 14 May 2018, the nomination application was refused by a delegate of the then Minister for Immigration and Border Protection. By Department letter of the same date the applicant was provided an opportunity to comment or withdraw the application. As no document or comment was received in response to the Department letter, the delegate found the applicant had not met cl.186.223(2); or cl.186.223.

12. The delegate also considered the applicant’s claims under the Direct Entry stream. However, under cl.186.233(1)(a), the position to which a visa application relates must be nominated and approved under r.5.19(4)(h)(i) or r.5.19(2) as in force before 1 July 2012. Since the nomination only sought to meet the requirements of r.5.19(3), the applicant did not meet cl.186.233; and the criteria for the grant of a Employer Nomination Scheme (Subclass 186) visa in the Direct Entry stream was not satisfied. The applicant’s application was also considered under the Agreement Stream. However, as the position was not nominated by an employer in accordance with a Labour Agreement, the applicant did not meet the requirement of cl.186.242; and the criteria for the grant of a Employer Nomination Scheme (Subclass 186) visa in the Agreement Stream was not satisfied. Next, the delegate considered cl.186.311 (member of the family unit). As relevant primary criteria had not been satisfied by any member of the family unit, none were entitled to be granted the Employer Nomination Scheme (Subclass 186) visa as members of the family unit.

13. The delegate refused to grant the applicant a Employer Nomination Scheme (Subclass 186) visa.

14. The Tribunal notes the nomination approval application related to this case, has been approved (by Tribunal decision - AAT # 1815936), and therefore the applicant satisfies this criteria for the visa. For the reasons set out in AAT # 1815936, the Tribunal is satisfied the person who will employ the applicant is the person who made the nomination; that the nomination has been approved and has not been subsequently withdrawn; that 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); that the position is still available to the applicant (and he has worked in the position since 2015); and that the visa application was made no more than six months after the nomination of the position was approved (the visa application was made 17 August 2017 - the nomination was approved 28 October 2019).  Therefore, cl.187.233(2) is met.

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

    DECISION

16. 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(2) of Schedule 2 to the Regulations

    Mr S Norman
    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.