Mansi (Migration)

[2017] AATA 1465

Mansi (Migration) [2017] AATA 1465 (22 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Noman Zidan Irsheid Mansi
Mrs Hadeel Yahia Sa'ed Hourani
Miss Natali Mansi

CASE NUMBER:  1515635

DIBP REFERENCE(S):  BCC2015/1544250

MEMBER:R. Skaros

DATE:22 August 2017

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 22 August 2017 at 2:25pm

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Temporary Residence Transition stream – Subclass 186 (Employer Nomination Scheme) – Previous nomination not approved – Review of refusal set aside – Nomination now approved

LEGISLATION
Migration Act1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223(2), r 5.19(3)

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 on 28 October 2015 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 29 May 2015. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Vegetable Grower. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

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 nomination of the position in respect of the applicant was not approved.

6. The applicant appeared before the Tribunal on 1 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.223(2).

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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. In addition, this criterion also requires that the nomination has been approved.

11. The applicant’s nominating employer, Ostastand Pty Ltd, applied to the Department for the approval of the position of Vegetable Grower in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

12. On 22 August 2017 the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant, who was a 457 visa holder at the time of the nomination, under r.5.19(3).

13. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl.186.223(2).

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. The secondary applicants are members of the first named applicant’s family unit, the Tribunal accordingly remits their applications for the Minister to consider the secondary criteria for the visas.

    DECISION

15. 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.

    R. Skaros
    Member