Scholz (Migration)

[2020] AATA 3866

Scholz (Migration) [2020] AATA 3866 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Julia Scholz

CASE NUMBER:  1819763

HOME AFFAIRS REFERENCE(S):          BCC2016/3189894

MEMBER:Susan Reece Jones

DATE:10 July 2020

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(2) of Schedule 2 to the Regulations

Statement made on 10 July 2020 at 4:42pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Marketing Specialist – need for a paid employee in the position – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 1.13; 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 29 June 2018 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 26 September 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 the Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113) for the nominator, Centre Square Pty Ltd. The nominator operates a specialist service to shopping centres across Australia, designing manufacturing and installing “kiosks” and “pop up stores” in / for and with shopping centres and their retail partners.   

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nominator failed to provide sufficient evidence to identify a need for the nominator to employ a paid employee to work in the position under the applicant's direct control.

6. The applicant appeared before the Tribunal on 29 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s director, Mr. Daniel Rosenberg and Accounts Manager, Ms. Petra Byrchtova.

7. The applicant was represented in relation to the review by its registered migration agent, Ms. Io Jacobson of Turnstone Migration.

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 meets the requirements of cl.186.233.  

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 applied for a visa on the basis of a nomination made by Centre Square Pty Ltd.  The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 24 May 2018.         

13. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 10 July 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

14. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.233(2).

15. Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. As the Tribunal is remitting the applicant of the visa applicant with a finding that she meets the requirements of clause.186.233(2), the remaining criteria for the applicant should now be reconsidered.  

    DECISION

17. 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.

    Susan Reece Jones
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.