O Neill (Migration)

[2023] AATA 1580

O Neill (Migration) [2023] AATA 1580 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Anthony O Neill

CASE NUMBER:  2004824

HOME AFFAIRS REFERENCE(S):          BCC2019/3278144

MEMBER:Amanda Mendes Da Costa

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 30 May 2023 at 8.00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – landscape gardener – subject of approved position nomination – related nomination application refused – no jurisdiction to review because company deregistered – length of residence, Australian permanent resident child and possibility of sponsorship by similar employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schdule 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 February 2020 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 June 2019. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Landscape Gardener ANZSCO Code 362213.

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

6. The applicants appeared before the Tribunal (via telephone) on 25 May 2023 to give evidence and present arguments.

7. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants.  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 be conducted by telephone.  The Tribunal was satisfied that the applicant and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

8. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained the role of the applicant’s representative during the hearing.  The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter he considered relevant to the review.

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 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 the position was approved.

13. During the hearing the Tribunal discussed with the applicant the following information[1]:

    ·The application for approval of the nominated position (Landscape Gardner ANZSCO 362213) made by A CLASS LANDSCAPING AND BRICK PAVING PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration.

    ·The nominator sought a review of that decision but the Tribunal found that it did not have jurisdiction because the company had been deregistered.

    ·This means that there is no approved nomination and no review of that refusal decision pending that concerns the applicant.

    [1] This information was also the subject of a letter (dated 27 April 2023) sent to applicant pursuant to s 359A of the Act.

14. The applicant conceded that he was not the subject of an approved nomination and the financial problems experienced by the nominator were not due to any actions on his part.

15. The applicant told the Tribunal that he had been living and working in Australia for approximately 11 years and has a three-year-old daughter who is an Australian permanent resident and from whom he does not wish to be separated.  He explained that he is not close to his elderly parents and has no extended family in Ireland who would be prepared to support him if his visa was not granted and he was required to return there.

16. The applicant said that he was in the process of having discussions with several landscaping businesses in the hope that one of them would be prepared to sponsor him for the nominated position.  However, at this stage he had not received a firm offer of employment by one of these businesses.

17. The Tribunal accepts that the applicant was not responsible for the financial difficulties experienced by the nominator and the deregistration of the company.  However, it finds that he is not the subject of an approved nomination for the nominated position.  The Tribunal has considered the applicant’s expectation that he may receive an offer of sponsorship by another nominator, but notes that this has not occurred to date.

18. Therefore, cl 186.223 is not met.

19. The applicant has 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

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.