Nowicka (Migration)

[2021] AATA 1465

Nowicka (Migration) [2021] AATA 1465 (26 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Magdalena Nowicka
Mr Adrian Kazimierz Gawlinski

CASE NUMBER:  1812222

HOME AFFAIRS REFERENCE(S):          BCC2017/1270235

MEMBER:Amanda Mendes Da Costa

DATE:26 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2021 at 8.02am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager – nomination refused– tribunal affirmed nomination decision–not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 on 17 April 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 April 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Customer Service manager (ANZSCO 1812222).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination. The delegate found that on 8 March 2018 the nomination application lodged by J Jarocki & SK Jarocki for the applicant was refused by a delegate of the Minister for Home Affairs.

6. The applicants appeared before the Tribunal on 23 April 2021 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a telephone hearing.

8. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the first named applicant is the subject of an approved nomination.

    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.

12. 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 reg 1.13A and reg 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

13. On 30 March 2021 the Tribunal wrote to the applicant inviting her to comment on or respond to information which it considered would, subject to the applicant’s comments, be the reason or part of the reason for affirming the decision under review.  The particulars of the information were that the application for approval of the nominated position for the applicant, made by J Jarocki & SK Jarocki  (the nominator) was refused by the Department. The nominator sought a review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 25 September 2020. 

14. The Tribunal explained to the applicant that this information was relevant to the review because it was a requirement for the grant of the visa that the position specified in his visa application was the subject of an approved nomination.  The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in his visa application was not the subject of an approved nomination.  This would mean that he did not satisfy a requirement for the grant of the visa, and that the Tribunal must affirm the decision under review.

15. The Tribunal advised the applicant that any comments or response should be provided in writing by 13 April 2021.

16. On 13 April 2021 the applicant provided a written response which included the following submissions:

    ·She was disappointed with the decision by the delegate to reject the nomination application, which was based on limited information.

    ·The company’s records were sufficient to support the nomination application, but the nominator’s lawyer made a mistake regarding the forms lodged regarding its training requirements.

    ·The company sponsored another employee whose nomination was approved and had met all of the requirements for the nomination for her position to be approved.

    ·Seven years after being granted a Subclass 457 visa, her status in Australia was still uncertain and it does not look that this will change.

17. In her oral evidence, the first named applicant told the Tribunal that she was very disappointed that that her efforts to work in Australia and obtain a permanent visa had not been successful.  However, she accepted that she was not the subject of an approved nomination and therefore did not meet the criteria for the grant of the visa.

18. The Tribunal acknowledges that the lack of a sponsor has been a difficult and distressing matter for the applicant.  However, on the basis of the evidence before it, the Tribunal finds that the application for approval of the nominated position for the applicant  made by the nominator has not been approved.  As the applicant is not the subject of an approved nomination, she does not satisfy a requirement for the grant of the visa.

19. Therefore, cl 186.223 is not met.

20. As the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it considers that the application of the second named applicant does not the requirements for the grant of the visa as the member of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

21. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Amanda Mendes Da Costa
    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.