Okumu (Migration)

[2023] AATA 2018

Okumu (Migration) [2023] AATA 2018 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Damaris Achieng Okumu
Mr Adrian Omolo Aloys

REPRESENTATIVE:  Ms Huimin Shen (MARN: 1795528)

CASE NUMBER:  1925060

HOME AFFAIRS REFERENCE(S):          BCC2018/1146762

MEMBER:Terrence Baxter

DATE:26 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

Statement made on 26 June 2023 at 9:49am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – accountant – subject of approved position nomination – related nomination application refused – combined hearing of position and visa reviews – no weight placed on dob-in allegation relating to nomination application – nomination refusal set aside – member of family unit – decision under review remitted

LEGISLATON
Migration Act 1958 (Cth), ss 65, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311

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 21 August 2019 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 10 March 2018. 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 Accountant for Goals & Dreams Financial Planning Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 20 July 2019 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole.

6. The delegate also found that the second named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criteria (cl 186.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 September 2019.

8. The applicants appeared before the Tribunal on 17 January 2023 and again by video conference on 23 May 2023 to give evidence and present arguments. Both hearings were joint hearings with the application for review of a decision to refuse the nomination application by the nominator.

9. The Tribunal exercised its discretion to hold the second hearing by video conference through MS Teams. The Tribunal determined it was reasonable to hold that hearing by video conference, 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 second hearing was not to be conducted by video conference.

10. The applicants were represented in relation to the review by their registered migration agent, Huimin Shen. The representative attended the Tribunal hearings by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Section 376 certificate

13. During the review, the Department issued a certificate and notification under s 376 of the Act on 23 November 2022 with respect to documents containing certain information. The certificate stated that the section of the Act applied because the information had been given to the Minister or to an officer of the Department in confidence. The Tribunal provided a copy of the certificate to the applicants on 30 November 2022.

14. The information relates to an allegation made by telephone to the Department on 27 January 2016. The informant alleged that false information had been provided to the Department in the related nomination application concerning the employment of the nominee. The informant also made allegations regarding the advertisement of the position.

15. The Tribunal has considered whether the information referred to in the certificate would be the reason, or part of the reason, for affirming the decision under review. As the issue in this case is whether there is an approved nomination, the Tribunal does not consider the information to be relevant to this application and has placed no weight on the information in reaching a decision in this matter.

    Nomination of a position

16. 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.

17. 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.

18. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Accountant approved, with the applicant as nominee, on 8 February 2018. The nomination application was refused on 20 July 2019 and the nominator sought review of that decision with the Tribunal on 8 August 2019.

19. On 26 June 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination.

20. Therefore, cl 186.223(2) is met in respect of the applicant.

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

22. The second named applicant applied on the basis that he is a member of the family unit of the applicant. His application will also be determined on remittal to the Department for reconsideration.

    DECISION

23. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 186 (Employer Nomination Scheme) visa:

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

    Terrence Baxter
    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.