Murray (Migration)

[2021] AATA 1304

Murray (Migration) [2021] AATA 1304 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wayne Murray

CASE NUMBER:  1812325

HOME AFFAIRS REFERENCE(S):          BCC2017/4865277

MEMBER:Joanne Bakas

DATE:18 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 visa:

·cl.186.223 of Schedule 2 to the Regulations

Statement made on 18 March 2021 at 1:08pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Home Affairs to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 19 December 2017. The delegate refused to grant the visa on 11 April 2018.

2. The delegate made the decision on the basis that the applicant did not meet cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Regulations) because the nomination of the position had not been approved (186.223(2)).

3. On 16 March 2021 the Tribunal decided to set aside the Department’s decision and substitute a decision approving the nomination. As the relevant nomination has now been approved, it follows that the requirement in cl.186.223(2) is now met.

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

5. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is an approved nomination of the position.

   Nomination of a position

7. Clause 186.223 essentially 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 (cl.186.223(2)).

8. As noted above, the relevant nomination in respect of the applicant was refused by the Department. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 16 March 2021, the Tribunal set aside the Department's decision and substituted a decision approving the nomination.

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

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

    DECISION

11. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 visa:

    ·cl.186.223(2) of Schedule 2 to the Regulations

    Joanne Bakas
    Member