Lehmann (Migration)

[2021] AATA 2960

Lehmann (Migration) [2021] AATA 2960 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sascha Lehmann
Ms Jugenis Racso Falcon Beaumont

CASE NUMBER:  1826259

HOME AFFAIRS REFERENCE(S):          BCC2017/4683585

MEMBER:Bridget Cullen

DATE:11 August 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 11 August 2021 at 1.14pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

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 22 August 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 December 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 (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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Electronic Equipment Trades Worker (ANZSCO 342313).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the applicant’s associated nomination, lodged by Versatronics Pty Ltd, was refused by the Department.

6. The applicants appeared before the Tribunal on 18 June 2021 to give evidence and present arguments. That hearing was held conjointly with the application for review lodged by Versatronics Pty Ltd, of which the primary review applicant is a director of.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Miklos Rakos (MARN 1173293). The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant’s associated nomination is approved.

   Nomination of a position

10. 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.

11. 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.

12. The applicants applied for their visas on 8 December 2017, identifying a nomination lodged by Versatronics Pty Ltd, for the requirements of cl.186.223. That nomination was refused by the Department on 20 July 2018, and the applicant was offered the opportunity to comment. The delegate refused the visa applications on 22 August 2018.

13. The nominating company, Versatronics Pty Ltd, applied for review of their application on 24 July 2018. The Tribunal affirmed that review application 23 July 2021.

14. On 26 July 2021, the Tribunal wrote to the applicant, pursuant to s.359A, in the following terms:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·On 23 July 2021, the Tribunal affirmed the decision to refuse an Employer Nomination application lodged by Versatronics Pty Ltd, which identified you as the nominee.

    This information is relevant to the review because when you applied for your Class EN (Subclass 186) visa on 8 December 2017, you identified this nomination for the purposes of satisfying cl.186.223(1) of Schedule 2 to the Migration Regulations. It is a requirement of cl.186.223(2) that the nomination be approved.

    If we rely on this information in making our decision, we may find that as the nomination lodged by Versatronics Pty Ltd has not been approved, that you are unable to meet cl.186.223(2) of Schedule 2 to the Migration Regulations. If we make this finding, it may form the reason that the Tribunal were to affirm the decision under review.”

15. The Tribunal provided the applicant until 9 August 2021 to provide their comments or response. To date, the Tribunal has not received a response.

16. On the basis of the information in front of it, the Tribunal finds that as the nomination lodged by Versatronics Pty Ltd, being the nomination identified by the applicant for the purposes of satisfying cl.186.223(1) has been affirmed, the applicant does not meet cl.186.223(2).

17. Therefore, cl 186.223 is not met.

18. 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.

19. As the primary applicant has not satisfied the primary criteria for a Subclass 186 visa, it therefore follows that the second named applicant is not able to meet the secondary requirements for the grant of a Subclass 186 visa. It therefore follows that their decision under review must also be affirmed.

    DECISION

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

    Bridget Cullen
    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.