Leemets (Migration)

[2022] AATA 2037

Leemets (Migration) [2022] AATA 2037 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Erkki Leemets
Ms Kristy Kuldmets

REPRESENTATIVE:  Ms Eugenia Anang

CASE NUMBER:  1913024

HOME AFFAIRS REFERENCE(S):          BCC2018/3354522

MEMBER:K. Chapman

DATE:20 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 20 June 2022 at 9:57pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 6 May 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicants applied for the visas on 4 September 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

2. 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.

3. 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 occupation of Carpenter (ANZSCO Code 331212). 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 as required. On 24 May 2019, the applicants applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

4. On 1 June 2022, pursuant to the procedure in s.359A of the Act, the Tribunal raised the following information with the applicant:

   ·The application for approval of the nominated position made by Red Dragon Construction Services Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

5. The Tribunal’s correspondence advised that the above information is relevant to the review, as it tends to suggest there is not an approved nomination of the applicant in relation to his visa application. This correspondence also indicated that if the Tribunal relies upon this information, then it may affirm the decision under review.

6. The due date for response to the invitation pursuant to s.359A of the Act was 15 June 2022. No response to this invitation was received by the due date. Accordingly, by operation of law, the applicants lost their right to attend a review hearing. On 16 June 2022, the Tribunal advised the applicants of their loss of right to a hearing. On same day, their representative made submissions seeking a decision on the papers and requesting Ministerial Intervention. Therefore, the Tribunal has reached its decision having regard to the documentary material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.186.223.

   Nomination of a position

9. 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.

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 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.

11. The Tribunal notes that the nomination of the applicant for the position of Carpenter (ANZSCO Code 331212) by the nominator has not been approved (see AAT matter 1909803). Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant. Accordingly, the requirements of cl.186.223 are not met.

12. 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.

13. It follows that the second named applicant also does not meet the criteria for the grant of the Subclass 186 visa.

14. There is no persuasive material before the Tribunal to warrant a recommendation for Ministerial Intervention. The applicants themselves may seek Ministerial Intervention if they wish to do so.  

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    K. Chapman
    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.