Ritikos (Migration)

[2018] AATA 3919

Ritikos (Migration) [2018] AATA 3919 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ephraim Alfa Ritikos

CASE NUMBER:  1620297

HOME AFFAIRS REFERENCE(S):           BCC2016/1314399

MEMBER:Warren Stooke AM

DATE:6 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 06 September 2018 at 3:24pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Advertising Specialist – nomination approved on review – no adverse information about the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 186.223, 186.233; rr 1.13, 5.19

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 10 November 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 March 2016. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Advertising Specialist [ANZSCO 225111].

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the position to which the visa application relates must have been nominated and approved under subregulation 5.19(3) and that since the correlating nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(3) the applicant did not satisfy regulation 186.223.

6. The applicant appeared before the Tribunal on 28 June 2018 and 31 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Yuvraj Singh Dilipsingh Rao, who is the applicant’s business partner and a director of Web Design Market Pty Ltd.

7. The applicant was represented in relation to the review by his registered migration agent.

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 has an approved nominated position in which to be engaged by Web Design Market Pty Ltd.

   Nomination of a position

10. 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.

11. 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.

12. The applicant in Tribunal Case No 1617688 (“the nominating sponsor”) gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with the current employment contract being rolled over for a minimum of another two years, post the approval of the nominated position. [Tribunal Case 1617688 - Folio 168]

13. The nominating sponsor confirmed at the hearing that the position had not been withdrawn and that the position was still available, with the nominee currently working in the position.

14. Further, the Tribunal is satisfied that the visa application was made prior to the approval of the nominated position.

15. The Tribunal is satisfied, that at the time of decision, that there is no adverse information pertaining to the applicant, which would impact upon the approval of the visa.

16. The Tribunal is satisfied that the applicant has the relevant qualifications and experience to satisfy ANZSCO 225111 in the position of Specialist Advertising, with a Communications and Marketing degree from RMIT and several years’ work experience in the profession. As such, the requirements of IMMI 15/092 have been met.

17. Therefore, cl.186.233 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.

19. Therefore, cl.186.223 is met.

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

    DECISION

21. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations; and

    ·cl.186.223 of Schedule 2 to the Regulations.

    Warren Stooke AM
    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.