Pantir (Migration)

[2023] AATA 3452

Pantir (Migration) [2023] AATA 3452 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gheorghita Alexandru Pantir
Mrs Consuelo Pagliardini

REPRESENTATIVE:  Mrs Margaret Taaffe

CASE NUMBER:  2100804

HOME AFFAIRS REFERENCE(S):          BCC2020/2231103

MEMBER:Namoi Dougall

DATE:21 September 2023

PLACE OF DECISION:  Sydney

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 186.242 of Schedule 2 to the Regulations; and

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visas:

·cl 186.312 of Schedule 2 to the Regulations.

Statement made on 21 September 2023 at 2:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Labour Agreement stream – Skilled Meat Worker – requirements of the labour agreement have been met in relation to the application – review of the nomination refusal has subsequently approved the nomination – members of the family unit of the primary applicant –subject of an approved nomination – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 1.13, Schedule 2, cls 186.242, 186.312

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 14 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 2 September 2020. 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 Labour Agreement stream, to work in the nominated position of Skilled Meat Worker.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.242 of Schedule 2 to the Regulations because the position to which the application relates was not the subject of an approved nomination.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is is whether the applicant meets the criteria in cl.186.242.

   Requirements relating to the nominated position

9. Clause 186.242 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the visa application relates to a position, as identified in that application, which is either nominated by the employer in accordance with a current labour agreement or, where the nomination was made on or after 18 March 2018, is nominated in the Labour Agreement stream and which identifies the visa applicant in relation to that position.

10. In addition, this criterion also requires that:

    ·if the related nomination was made before 18 March 2018, the labour agreement requirements relating to the application have been met

    ·the nomination has been approved and not subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the employer who made the nomination or a person ‘associated with’ that employer (within the meaning of reg 1.13A or reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the terms and conditions of employment will be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same place.

    1.On 19 October 2020, the nomination application lodged by the nominating buisness under the Employment Nomination Scheme was refused by the Department on the basis that at the time there was no Labour Agreement between the applicant and the Department in effect.

    2.On 28 October 2021, the Department wrote to the nominating business advising that the labour agreement between the Minister and the nominating business had been signed by all parties and was in effect.

    3.The Tribunal on 21 September 2023, in a review of the nomination refusal has subsequently approved the nomination.  The Tribunal thus finds that the position to which the application relates is the subject of an approved nomination, the nomination has not been withdrawn and the nomination meets the requirements of cl.186.242(3) and (4). The Tribunal in its decision to approve the nomination made further findings as follows:

    ·     The position of Skilled Meat Worker was identified, a person (Mr Gheorghita Pantir) was identified in relation to that position. An occupation in relation to the position was identified Skilled Meat Worker (ANZSCO 070499) as was the subclass and stream to which the nomination relates (subclass 186 visa and Labour Agreement nomination stream). Further, the position identified in the visa application is Skilled Meat Worker and is related to the position identified in the nomination. Accordingly, the Tribunal finds that cl.186.242(1) is met.

    ·     The requirements of the labour agreement have been met in relation to the application. Accordingly, the Tribunal finds that cl.186.242(2) is met.

    ·     Although there was adverse information known to Immigration about the employer who made the nomination, the Tribunal found that it was reasonable to disregard any adverse information. Accordingly, the Tribunal finds that cl.186.242(4A) is met.

    ·     The applicant has worked for the nominating business in the position of Skilled Meat Worker since 27 September 2016 and is still currently employed full time with the nominating business in that position. Therefore, the Tribunal is satisfied that the position is still available to the applicant. Accordingly, cl.186.242(5) is met.

    ·     The nominee’s annual earnings of $72,776.08, is not less than the TSMIT and not less than the annual market salary rate or the occupation of Skilled Meat Worker. Further, there is no information on the Departmental or Tribunal files that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. Therefore, the Tribunal is satisfied that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian equivalent worker. Accordingly, cl.186.242(6) is met.

    4.Therefore, cl 186.242 is met.

    5.The second named applicant (the secondary applicant) applied for the visa on the basis of being members of the family unit of the primary applicant who meets primary criteria. As the Tribunal has approved the associated nomination and the secondary applicant is included in that nomination, the Tribunal finds that the secondary applicant meets the criteria in reg.186.312.

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

    DECISION

    7.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 186.242 of Schedule 2 to the Regulations; and

    And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visa:

    ·cl 186.312 of Schedule 2 to the Regulations.

    Namoi Dougall
    Member

    
    

    ATTACHMENT A

    186.242(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 Labour Agreement stream; and

    (b)identified in the application for the grant of the visa.

    (2)     The requirements of the labour agreement have been met in relation to the application.

    (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 employer who made the nomination or a person associated with the employer; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with that employer.

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

    (6)     The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (a)are provided; or

    (b)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.