Porter (Migration)

[2021] AATA 5540

Porter (Migration) [2021] AATA 5540 (24 September 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Louise Anne Porter

CASE NUMBER:  1829081

HOME AFFAIRS REFERENCE(S):           BCC2018/518019

MEMBER:  Mark O'Loughlin

DATE:  24 September 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 24 September 2021 at 11:29am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 14 September 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 31 January 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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 applicant must satisfy the primary 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.

1. In the present case, the applicant is seeking the visa in the Direct Entry stream.

1. The delegate refused to grant the visa because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because the related nomination had not been approved as required by cl.186.233(3).

1. The applicant was represented in relation to the review by her registered migration agent.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. On 6 September 2021 the Tribunal made a decision (“the decision”) affirming the decision of a delegate of the relevant Minister not to approve the nomination to which this application is related.

1. On 7 September 2021 the Tribunal sent the applicant a letter complying with s359A of the act advising her of the decision and advising that it would be the reason or part of the reason for affirming the decision in this application.

1. The applicant did not respond to that invitation within the time specified, namely by 21 September 2021.

1. The applicant has not responded to the invitation at the time of this decision.

1. The Tribunal has regard to the decision and finds that the nomination relevant to this matter is not the subject of approval as required by cl.186.233(3).

1. Therefore, cl 186.233 is not met.

1. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Mark O'Loughlin 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.