Panganiban (Migration)

[2023] AATA 3115

Panganiban (Migration) [2023] AATA 3115 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Grace Ann Nohay Panganiban
Mr Rocky Jones Reyes De Leos
Miss Kirsten Ashley Caisip De Leos

REPRESENTATIVE:  Mrs Elaine Nunez (MARN: 1172914)

CASE NUMBER:  2101065

HOME AFFAIRS REFERENCE(S):          BCC2019/4921968

MEMBER:Amanda Mendes Da Costa

DATE:4 September 2023

PLACE OF DECISION:  Melbourne

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 criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.233 of Schedule 2 to the Regulations.

The Tribunal considers that the applications of the second and third named applicant should be reconsidered on the basis they meet the secondary requirements for the grant of  Subclass 186 (Employer Nomination Scheme) visas.

Statement made on 4 September 2023 at 10.32am

CATCHWORDS  
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Registered Nurse (Perioperative) – subject of an approved nomination – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 360 
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233 

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 11 January 2021 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 1 October 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Registered Nurse (Perioperative) ANZSCO Code 254423.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. 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.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl 186.233 of Schedule 2 to the Regulations.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

12. The Tribunal notes that DERRIMUTROADCLINIC PTY LTD (the sponsor) made a nomination application to the occupation of Registered Nurse (Perioperative) for the applicant.  A delegate of the Ministered refused this application and the sponsor subsequently made an application for review of this decision.  On 1 September the Tribunal set aside the delegate’s decision and substitute its own decision, approving the nomination.

13. The Tribunal is therefore satisfied that the position to which the application relates is the subject of an approved nomination in the Direct Entry stream.

14. The Tribunal is further satisfied that :

    ·     the person who will employ the applicant is the person who made the nomination;

    ·     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.

15. Therefore, cl 186.233 is met.

16. Give the above findings regarding the applicant, the Tribunal considers that the second and third named applicants meet the secondary requirements for the grant of the visa.

17. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

    DECISION

18. 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 criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.233 of Schedule 2 to the Regulations.

19. The Tribunal considers that the applications of the second and third named applicant should be reconsidered on the basis they meet the secondary requirements for the grant of Subclass 186 (Employer Nomination Scheme) visas.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.233(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 Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.