Miron (Migration)

[2019] AATA 3777

Miron (Migration) [2019] AATA 3777 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Alina Ionela Miron
Mr Bogdan Miron

CASE NUMBER:  1621888

HOME AFFAIRS REFERENCE(S):           BCC2015/2915058

MEMBER:Sheridan Lee

DATE:24 June 2019

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 24 June 2019 at 4:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing Specialist – subject of an approved nomination – nomination application now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 30 November 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 for the visas on 6 October 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 Labour 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 Marketing Specialist.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The primary applicant (the applicant) appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Claudiu Tutuian on behalf of the nominating employer, NDST Pty Ltd.

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

   Nomination of a position

9. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition 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.

10. 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.1.13B); 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.

11. The applicant’s nominating employer, NDST, applied to the Department of Home Affairs for approval of the position of Marketing Specialist in respect of the applicant on 4 October 2015. The Department refused to approve the nomination and the employer subsequently applied to the Tribunal for review of that decision.

12. On 24 June 2019, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. As the relevant nomination has now been approved, the applicant meets the requirement in cl.186.223(2).

13. Having regard to the information on the related Tribunal file in respect of the nomination application, the Tribunal is satisfied that there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person. The Tribunal is also satisfied on the basis of the supporting documents and the evidence provided at the hearing that the position is still available to the applicant and the nomination has not been withdrawn.

14. The visa application was made two days after the nomination application was made. It was therefore made no more than six months after the nomination of the position was approved.

15. Therefore, cl.186.223 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, his application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration

    DECISION

17. 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 of Schedule 2 to the Regulations.

    Sheridan Lee
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)      The position is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.