Mercado (Migration)

[2018] AATA 1283

Mercado (Migration) [2018] AATA 1283 (19 January 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marvin Mag-Akat Mercado
Ms Belinda Mercado
Mr Marl Steven Mercado
Miss Marvilyn Krysabel Mercado
Miss Marvilyn Grace Mercado

CASE NUMBER:  1618793

DIBP REFERENCE(S):  BCC2016/1540456

MEMBER:Bridget Cullen

DATE OF DECISION:  19 January 2018

DATE CORRIGENDUM

SIGNED:19 March 2018

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The original Decision Record states the Date of Decision is 19 January 2017.

2.The correct Date of Decision is 19 January 2018.

Bridget Cullen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marvin Mag-Akat Mercado
Ms Belinda Mercado
Mr Marl Steven Mercado
Miss Marvilyn Krysabel Mercado
Miss Marvilyn Grace Mercado

CASE NUMBER:  1618793

DIBP REFERENCE(S):  BCC2016/1540456

MEMBER:Bridget Cullen

DATE:19 January 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 19 January 2018 at 11:22am

CATCHWORDS

Migration – Employer Nomination (Permanent) – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination application withdrawn – Tribunal granted an extension of time to applicants to provide additional materials – Dependents – Members of the same family unit

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 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 Immigration on 24 October 2016 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 24 April 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination application lodged by ACOR Consultants Pty Ltd was withdrawn on 16 September 2016.

6. The applicants appeared before the Tribunal on 18 December 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. The issue in the present case is whether the primary applicant meets 186.233. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

9. 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.

10. During the hearing, the applicants requested that the Tribunal provide them with an opportunity to submit additional materials following the hearing.  The Tribunal granted this request, and then provided the applicants with a further extension of time to submit material, which expired on 12 January 2017.  The Tribunal has not received any further information from the applicants following the hearing.

11. As the nomination application to which the applicants’ visa application relates was withdrawn by ACOR Consultants Pty Ltd, the primary applicant does not meet 186.233.

12. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

13. The other applicants included in this application have not made any claims for a Subclass 186 visa, other than as dependents of the primary applicant’s family unit.  As the primary applicant has not met 186.233, the other applicants are also unable to meet the criteria for a Subclass 186 visa in the Direct Entry stream.

    DECISION

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

    Bridget Cullen
    Member