MOTAMEDI NEJAD (Migration)

[2021] AATA 111

MOTAMEDI NEJAD (Migration) [2021] AATA 111 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Soheil MOTAMEDI NEJAD
Mrs Azadeh SALEHI

CASE NUMBER:  1803949

HOME AFFAIRS REFERENCE(S):          BCC2017/2089104

MEMBER:R. Skaros

DATE:19 January 2021

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.

The Tribunal does not have jurisdiction in respect of the second named applicant.

Statement made on 19 January 2021 at 12:08pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – refusal of related position nomination set aside on review – second applicant offshore when review application made, and since – decision under review remitted for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 30 January 2018 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 13 June 2017. 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 Metallurgical or Materials Technician.

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 in relation to the applicant was not approved.

6. While the Tribunal has jurisdiction to review the decision made in relation to the applicant, who is the primary applicant for the visa, the Tribunal notes that the second named applicant (Ms Azadeh Salehi) has been offshore since November 2016 and was not in Australia at the time of the review application. In the circumstances, the Tribunal does not have jurisdiction in respect of the second named applicant.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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 nomination of a position in relation to the applicant has been approved.

    Nomination of a position

11. 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. In addition, this criterion also requires that the nomination has been approved

12. In this case the applicant applied for the visa on the basis of a nomination made by Calderys Australia Pty Ltd for approval of a position in the occupation of Metallurgical or Materials Technician. The delegate refused the nomination and Calderys Australia Pty Ltd applied for review of the decision to refuse the nomination.

13. On 14 January 2021 the Tribunal, differently constituted, set aside the Department’s decision to refuse the nomination and made a decision to approve the nomination.

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

15. 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 noted above, the Tribunal does not have jurisdiction in respect of the second named applicant.

    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(2) of Schedule 2 to the Regulations.

18. The Tribunal does not have jurisdiction in respect of the second named applicant.

    R. Skaros
    Senior 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.