Sefat (Migration)

[2018] AATA 5327

Sefat (Migration) [2018] AATA 5327 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saeed Sefat
Mrs Laleh Ousia
Miss Sara Sefat

CASE NUMBER:  1704749

HOME AFFAIRS REFERENCE(S):           BCC2016/1747817

MEMBER:Susan Trotter

DATE:30 October 2018

PLACE OF DECISION:  Brisbane

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.186.233 of Schedule 2 to the Regulations.

Statement made on 30 October 2018 at 4:58pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Building Associate – subject of an approved nomination – nomination application now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; 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 then Minister for Immigration and Border Protection (the Minister) on 1 March 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 16 May 2016.

3. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

4. 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.

5. In the present case, the first-named applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Building Associate.

6. The delegate refused to grant the visas because the first-named applicant did not meet cl.186.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to the applicant. The delegate found that the nomination made by the first-named applicant’s employer, Bistoon Construction Pty Ltd had been refused on 18 January 2017. Accordingly, the first-named applicant did not satisfy cl.186.233(3) and did not meet cl.186.233 as a whole. The delegate found that the other applicants (the partner and daughter of the first-named applicant) could not be granted a Subclass 186 visa either, as they did not meet the secondary visa criteria requiring them each to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 14 March 2017.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal.

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 there is an approved nomination in respect of the first-named applicant.

    Nomination of a position

11. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii) as it was then.

12. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)  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;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

13. Records of the Department of Home Affairs (the Department) indicate that the first-named applicant’s employer, Bistoon Construction Pty Ltd, made an application to have the position of Building Associate approved, with the first-named applicant as the nominee, with the Department on 16 May 2016. This nomination application was refused on 18 January 2017 and Bistoon Construction Pty Ltd sought review of that decision with the Tribunal on 27 January 2017. On 30 October 2018, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination application made by Bistoon Construction Pty Ltd.

14. Accordingly, the Tribunal is satisfied that:

    (a)  the person (in this case, business) that will employ the first-named applicant is Bistoon Construction Pty Ltd, who made the nomination application;

    (b)  that nomination has been approved and has not been withdrawn;

    (c)  the position is still available to the first-named applicant; and

    (d)  the visa application was made no more than six months after the nomination of the position was approved.

15. As regards whether there is adverse information known to Immigration about Bistoon Construction Pty Ltd, the Tribunal observes that in 2014 the Department decided to impose a sponsorship bar against Bistoon Construction Pty Ltd on the basis that it had failed to satisfy its sponsorship obligations, including because it had underpaid the first-named applicant by $1.37 per hour in relation to his then employment pursuant to a Subclass 457 visa. Notably, however, imposition of that sponsorship bar was lifted following a decision by this Tribunal, differently constituted, and Bistoon Construction Pty Ltd rectified the underpayment of wages, and the associated superannuation payments, to the first-named applicant as soon as it became aware of the issue. From a review of the Department’s Integrated Client Services Environment electronic records, there is no ‘adverse information’ known to Immigration about Bistoon Construction Pty Ltd or a person ‘associated with’ it (within the meaning of r.1.13A and r.1.13B). The Tribunal is therefore satisfied and finds that there is no adverse information known to Immigration about Bistoon Construction Pty Ltd or a person associated with it.

16. Given the above, the Tribunal is satisfied that cl.186.233 is met by the first-named applicant.

17. As the other applicants applied on the basis that they are each a member of the family unit of the first-named applicant, their application will be determined by reference to the outcome of the first-named applicant's application on remittal to the Department for reconsideration.

    Conclusion

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

    DECISION

18. 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.186.233 of Schedule 2 to the Regulations.

    Susan Trotter
    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.