Mcauley (Migration)

[2018] AATA 3577

Mcauley (Migration) [2018] AATA 3577 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bernard Mcauley

CASE NUMBER:  1716451

HOME AFFAIRS REFERENCE(S):           BCC2016/4330340

MEMBER:Warren Stooke AM

DATE:22 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 22 August 2018 at 3:49pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(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 and Border Protection on 25 July 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 December 2016. 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 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 Carpenter and Joiner [ANZSCO 3312].

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the Employer Nomination Scheme (subclass 186) visa was not satisfied with the approval of a nominated position.

6. The applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

9. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 25 July 2017 and that he understood the content of the decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved nomination.

    Nomination of a position

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

13. 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 r.1.13A and r.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.

14. The applicant in Tribunal Case No 1714315 (“the nominating sponsor”) gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with the current employment contract being rolled over for a minimum of another two years, post the approval of the nominated position. [DIBP File - Folio 36-37]

15. The nominating sponsor confirmed at the hearing that the position had not been withdrawn and that the position was still available, with the nominee currently working in the position.

16. Further, the Tribunal is satisfied that the visa application was made prior to the approval of the nominated position.

17. The Tribunal is satisfied, that at the time of decision, that there is no adverse information pertaining to the applicant, which would impact upon the approval of the visa.

18. Therefore, cl.186.233 is met.

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 an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations; and

    ·cl.186.223 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.