LIONE (Migration)

[2018] AATA 5685

LIONE (Migration) [2018] AATA 5685 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alessandro LIONE
Ms Cecilia TORTORA

CASE NUMBER:  1615305

DIBP REFERENCE(S):  BCC2015/3324942

MEMBER:Danielle Galvin

DATE:17 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.223(3) of Schedule 2 to the Regulations

Statement made on 17 December 2018 at 1:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Web Administrator – employer nomination approved – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 360
Migration Regulations 1994, r 1.13, 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 Immigration to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 November 2015.

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 applicants are seeking the visa under the Direct Entry stream to work in the nominated position of Web Administrator for Lion IT Pty Ltd.

5. The delegate refused to grant the visas on 7 September 2016.The delegate made the decision on the basis that the nominator, in relation to the first named applicant’s visa application, Lion IT Pty Ltd, had their nomination refused by the Department on 2 August 2016. As a consequence, there was no approved nomination in place in respect of the first named visa applicant at the time of the delegate’s decision and the requirement of cl.186.233(3) was not met. Meeting the criteria of this clause is required to grant the visa under the Migration Regulations 1994 (the Regulations).

6. In the related matter, the nominator had applied to the Tribunal for a merits review of the Department’s decision, of 2 August 2018, to refuse approval of the nomination. On 24 April  2018 the Tribunal set aside the department’s decision and approved the nomination.

7. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   DECISION

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

   Nomination of a position

10. Clause 186.223 requires that the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry 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 r.1.13A and r.1.13 B); 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. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl 186.223(3).

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

14. The application of the second named visa applicant is based on being a family member of the family unit of the first named applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named applicant with a finding that he meets the requirements of cl.186.223, the remaining criteria for his application should now be reconsidered, in addition the application of the second named visa applicant, as a member of the family unit of the first named visa applicant, should now also be reconsidered in full.

    DECISION

15. The Tribunal remits the applications Employer Nomination Scheme (subclass 186) 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(3) of Schedule 2 to the Regulations.

    Danielle Galvin
    Member