Lucas (Migration)

[2024] AATA 676

Lucas (Migration) [2024] AATA 676 (17 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Virgil Nestor Soriano Lucas
Mrs Emily Dela Cruz Lucas
Mr Vaughn Simon Eli Dela Cruz Lucas

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2101369

HOME AFFAIRS REFERENCE(S):          BCC2020/646658

MEMBER:P. Maishman

DATE:17 February 2024

PLACE OF DECISION:  Perth

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 186.233 of Schedule 2 to the Regulations.

The applications for the second and third named applicants are remitted for reconsideration in accordance with this direction.

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – 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 Home Affairs on 18 January 2021 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 2 March 2020. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General) (ANZSCO code 221111).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the position was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal at a combined hearing with the nominator on 8 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s director Mr Tony Petinella.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

8. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the position is the subject of an approved nomination.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

12. 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 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.

13. The applicant was nominated by Fresh Berry Co Pty Ltd for the position of Accountant. The position is the same as the position nominated in the reg 5.19 nomination application and the employer is the nominator.

14. The nomination was initially refused by the Department on 29 July 2020. However, on 17 February 2024 this Tribunal made the decision to set aside the refusal and substituted a decision to approve the nomination (case number 2012978).

15. The Tribunal is satisfied there is no adverse information known to Immigration about the person who made the nomination or a person ‘associated with’ that person.

16. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was not made more than six months after the nomination of the position was approved.

17. Given the above, the Tribunal finds that the applicant meets all the requirements of cl 186.233.

18. The second and third named applicants made their application on the basis of being members of the family unit of the first named applicant. Accordingly, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

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

    DECISION

20. 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 186.233 of Schedule 2 to the Regulations.

    The applications for the second and third named applicants are remitted for reconsideration in accordance with this direction.

    P. Maishman
    Member

    
    

    ATTACHMENT A

    186.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.