POTHMANN (Migration)

[2020] AATA 2271

POTHMANN (Migration) [2020] AATA 2271 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Benjamin POTHMANN
Ms Aschara ROJANAKAT

CASE NUMBER:  1731192

HOME AFFAIRS REFERENCE(S):          BCC2017/1667561

MEMBER:Alan McMurran

DATE:4 June 2020

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.186.223(2) of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Secondary Applicant

The Tribunal remits the application by the secondary applicant for reconsideration with the direction that the application be considered for the remaining criteria.

Statement made on 04 June 2020 at 9:20am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – refusal set aside on review – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)

Migration Regulations 1994 (Cth), Schedule 2, cll 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 Immigration and Border Protection on 21 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 May 2017. 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 (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 arborist (ANZSCO 362212).

5. The delegate refused to grant the visas because the applicant did not meet cl.186. 223 (2) and clause 186.223 of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination which the Minister has approved.

6. On 28 May 2020, the Tribunal concluded the review of the nomination application in case file 1726692, lodged by the nominator. The Tribunal decided to set aside the decision under review and substituted a decision approving the nomination.

7. Accordingly, the Tribunal finds it is now able to favourably determine this application for review by the visa applicants under section 360 (2) of the Act, and without a hearing.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicants are the subject of a nomination which the Minister has approved under regulation 186.223 (2) of the Regulations and whether the applicant meets regulation 186.223 of Schedule 2.

11. The decision in relation to the secondary applicant, as a member of the family unit of the primary review applicant, follows the decision for the primary review applicant. The Tribunal has had regard to the information provided on its case file, together with the Department file for the visa applicants, and the related files for the nomination.

    Nomination of a position

12. 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.

13. 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 r.1.13A and r.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.

14. On the information available, the Tribunal finds that the nomination has been approved following the review and decision by the Tribunal on 28 May 2020 and clause 186.223 (2) is met. The Tribunal finds the nomination application has not been withdrawn.

15. On the available information, the Tribunal is satisfied there is no adverse information known to Immigration (or the Tribunal) about the person who made the nomination, or a person associated with that person.

16. The Tribunal finds that the position of arborist working for the nominator is still available to the applicant. The Tribunal is further satisfied the visa application was made no more than 6 months following the nomination approval.

17. Therefore, cl.186.223 is met.

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

    Secondary applicant

19. The secondary applicant is a member of the family unit of the primary review applicant. The secondary applicant must be a member of the family unit who has satisfied the primary criteria. All criteria must be satisfied at the time a decision is made on the application for the visas.

20. As the Tribunal has found the primary review applicant meets the criteria in clause 186.223(2) and 186.223 of the Regulations, the appropriate course is to remit the application by the secondary applicant to the Department for further consideration of the remaining criteria.

    DECISION

21. 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:

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

    ·cl.186. 223 of Schedule 2 to the Regulations.

    Secondary applicant

    The Tribunal remits the application by the secondary applicant for reconsideration with the direction that the application be considered for the remaining criteria.

    Alan McMurran
    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.