Oiwa (Migration)

[2019] AATA 5322

Oiwa (Migration) [2019] AATA 5322 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hitomi Oiwa

CASE NUMBER:  1800536

DIBP REFERENCE(S):  BCC2017/2164807

MEMBER:Andrew McLean Williams

DATE:21 November 2019

PLACE OF DECISION:  Brisbane

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

·cl.186.233(2) of Schedule 2 to the Regulations

Statement made on 21 November 2019 at 3:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – subject of approved nomination – employer’s position nomination refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(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 Immigration 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 June 2017. The delegate refused to grant the visa on 19 December 2017.

2. The delegate made the refusal decision on the basis that the application for approval of a nominated position that had been made by Toshi Train Pty Ltd (being the same position in the case of Ms Hitomi Oiwa for purposes of sub-regulation 186.233(1)) had been refused by a delegate of the Minister, on 10 August 2017. In those circumstances Ms Oiwa was not able to satisfy a mandatory criterion for the grant of a visa under the Migration Regulations 1994 (‘the Regulations’).

3. On 21 November 2019 the Tribunal overturned the related decision referred to in paragraph 2 (immediately above) and substituted a decision approving the nomination of a position by Toshi Train Pty Ltd for Hitomi Oiwa as a Cook (ANZSCO 351411).  

4. In light of that, the Tribunal is satisfied that the mandatory criterion in sub-clause 187.233(2) is now able to be met by the visa applicant, and has concluded that this matter should now be remitted to the Department for reconsideration by a delegate of the Minister.

   DECISION

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

   ·cl.186.233(2) of Schedule 2 to the Regulations

   Andrew McLean Williams
   Member