MUACCAD (Migration)

[2021] AATA 263

MUACCAD (Migration) [2021] AATA 263 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Giuliano MUACCAD

CASE NUMBER:  1809401

HOME AFFAIRS REFERENCE(S):          BCC2015/1861932

MEMBER:Cathrine Burnett-Wake

DATE:12 February 2021

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(5) of Schedule 2 to the Regulations.

Statement made on 12 February 2021 at 1:47pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – position still available to applicant – applicant currently interstate, but returning as soon as possible – evidence from employer that position still available – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(5)

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 23 March 2018 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 29 June 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Diver with Bowline Marine Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233(5) of Schedule 2 to the Regulations because they found the position was not still available to the applicant.

6. The applicant appeared before the Tribunal on 12 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr William Manning, owner and Director of Bowline Marine Pty Ltd and Ms Cassandra Cameron, the applicant’s partner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the position is still available to the applicant.

   Nomination of a position

9. 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.

10. 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.

11. The applicant and his partner gave evidence that although they were currently in Tasmania, they would be moving back to Sydney as soon as possible. The applicant gave evidence to the Tribunal that upon his return to Sydney he would re-commence employment with Bowline Marine Pty Ltd. The applicant’s partner explained that she is an Australian citizen and from Sydney, which is where all her family and friends reside, and they were keen to get back as soon as possible as Tasmania was only a temporary move. The applicant’s partner gave evidence that it was the applicant’s intention to recommence employment with Bowline Marine Pty Ltd upon their return to Sydney.

12. Prior to the hearing the Tribunal received a letter from Mr William Manning, Director of Bowline Marine Pty Ltd which confirmed the position of Diver was still available to the applicant.

13. Mr Manning also appeared before the Tribunal and gave evidence that the position was still available to the applicant. Mr Manning outlined to the Tribunal that it was difficult to get skilled workers of the applicant’s calibre. Mr Manning confirmed that his business currently employs 3 Divers, however, he has capacity for Mr Manning to re-join his team and was expecting this to occur as soon as possible. Mr Manning told the Tribunal that the applicant had previously worked for him for 5 years and was eager for him to re-join the company and that the applicant had given him an undertaking he would re-commence employment upon his return to Sydney. Mr Manning also provided evidence to the Tribunal that his business was financially viable and had the financial capacity to employ the applicant.

14. Based on Mr Manning’s evidence both written and verbal that the position is still available, the Tribunal is therefore satisfied, cl.186.233 is met.

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

    DECISION

16. 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(5) of Schedule 2 to the Regulations

    Cathrine Burnett-Wake
    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.