Pedrini (Migration)

[2020] AATA 1243

Pedrini (Migration) [2020] AATA 1243 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gianluca Pedrini
Ms Valentina Conti

CASE NUMBER:  1834305

DIBP REFERENCE(S):  BCC2017/4927713

MEMBER:Andrew George

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 March 2020 at 11:30 am (NT time)

DATE OF WRITTEN RECORD:                14 April 2020

PLACE OF DECISION:  Darwin

DECISION:1. 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:

·clause 186.211 of schedule 2 to the Regulations;

·clause 186.212 of schedule 2 to the Regulations;

·clause 186.212A of schedule 2 to the Regulations;

·clause 186.221 of schedule 2 to the Regulations;

·clause 186.222 of schedule 2 to the Regulations; and

·clause 186.223 of schedule 2 to the Regulations.

2. The Tribunal recommends that the application of the secondary applicant is reconsidered in light of the findings regarding the first named applicant.

Statement made on 14 April 2020 at 4:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Motor Mechanic – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.211, 186.212, 186.212A, 186.221, 186.222, 186.223

application for review

1. At the hearing on 10 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   statement of decision and reasons

2. The tribunal now deals with the application of the primary applicant, Mr Gianluca Pedrini, with a secondary applicant being Ms Valentina Conti. The case number is 1834305. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2018 to refuse to grant the applicant’s employer nomination permanent class EN visas under section 65 of the Migration Act 1958, which I will call the Act.

3. The applicants applied for the visas on 22 December 2017. At the time of the application class EN contained one subclass, which was subclass 186, employer nomination scheme. The criteria for the grant of class 186 visa are contained in part 186 of schedule 2 to the Migration Regulations 1994, which I will refer to as the Regulations.

4. The primary criteria must be satisfied by at least one applicant.  Other members of the family unit who are applicants for the visa must only satisfy the secondary criteria, and that is the case with Ms Conti.  Applicants seeking to satisfy the primary criteria must meet the common criteria, as well as the criteria of one of three alternative visa streams, temporary residence condition stream, the direct entry stream, or the later agreement stream.

5. In the present case the first named applicant, Mr Pedrini, who I will refer to as the applicant, is seeking the visa in the temporary residence transition stream to work in the nominated position of a motor mechanic.  The delegate refused to grant the visas because the applicant did not have a successful nomination.  The applicant appeared before the tribunal on the present date prepared to give evidence and present arguments, but was not called on by the tribunal to do so.  The applicants were represented in relation to their review by their registered migration agent, Mr Kelleher. 

6. For the following reasons the tribunal has concluded that the matter should be remitted for consideration.  The first consideration that the tribunal has is, perhaps the first issue of any criteria for licensing, registration, and membership requirements.  The relevant clause is 186.211.  Essentially this clause applies to all primary applicants, if it is mandatory, in the state or territory where the nominated position is located, to hold a licence, registration, or a membership of a professional body to undertake the tasks to be performed.

7. What that means in the present case is whether or not there is any requirement for Mr Pedrini to hold licensing, registration, or membership requirements.  There is no evidence before the tribunal that there is any such requirement for Mr Pedrini to hold a licensing, registration, or membership, and a submission to that extent has been made by Mr Kelleher and the tribunal accepts it.

8. Therefore, clause 186.211 is not applicable and my reading, Mr Kelleher, is therefore it is met.  The next consideration of the tribunal is whether or not employment will be provided to the applicant.  Clause 186.212 requires that the nominated position will provide the applicant with the employment referred with a related nomination application.  The tribunal has found, in case number 1828346, which is the nomination, that such employment will be provided and therefore the tribunal is satisfied that clause 186.212 is met.

9. The next consideration for the tribunal is whether the applicant has engaged in conduct in contravention of the Act.  The tribunal does not intend to address criteria in any great detail, noting that it has copies of essentially clear criminal histories from Mr Pedrini and Ms Conti, and there is no evidence before the tribunal that the applicant, or any person associated with the applicant, has engaged in any contravention of the Act, therefore clause 186.212A is met.

10. The next consideration of the tribunal is regards age requirements.  The tribunal notes that the application date was 22 December 2017 and the age requirement therefore is that the applicant must not have turned 45 years as at the date of application.  In the present case the tribunal records indicate that the applicant was born on 1 September 1983.  He therefore meets the age requirements and the tribunal is satisfied that clause 186.221 is met.

11. The next requirement or issue for the tribunal to consider regards to the applicant’s English language efficiency.  For applications made on or after 1 July 2017 the level of English language proficiency required is competent English.  Competent English is defined in regulation 1.15C of the Regulations, but essentially the tribunal has noted the applicant’s IELTS testing dated 9 September 2017, which is within three years of the visa application, and notes that the applicant received a score of 6 for listening, a 6 for reading, 6 for writing, and 6 and a half for speaking.  As such the applicant has met the required level of competent English and therefore clause 186.222 is met.

12. The next consideration for the tribunal is nomination of position.  This is essentially why the application failed in the first place, but what materially changes everything is the success now of that nomination application for case number 1828346.  That application having momentarily been approved, the tribunal is satisfied that it has not been subsequently withdrawn in the last 10 minutes.  There is no adverse information known to Immigration about the nominated person or a person associated with the nominated person.  Again there is no indication that in the last 10 minutes the position is no longer available to the applicant, and it is clear, in these circumstances, that the visa application was made no more than six months after the nomination of the position was approved.  The nomination of the position having just been approved.  Given those approvals and the findings of the tribunal in case number 1828346, clause 186.223 is met.

    decision

13. The decision of the tribunal therefore is the tribunal remits the applications, 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: clause 186.211 of schedule 2 to the Regulations, clause 186.212 of schedule 2 to the Regulations, clause 186.212A of schedule 2 to the Regulations, clause 186.221 of schedule 2 to the Regulations, clause 186.222 of schedule 2 to the Regulations, and clause 186.223 of schedule 2 to the Regulations.

14. And the tribunal further recommends that the application of the secondary applicant is reconsidered in light of the findings of the primary applicant. 

    Andrew George
    Member