Seidenhefter (Migration)

[2019] AATA 2267

Seidenhefter (Migration) [2019] AATA 2267 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arndt Seidenhefter

CASE NUMBER:  1803755

HOME AFFAIRS REFERENCE(S):           BCC2017/1984595

MEMBER:Alan McMurran

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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.186.223 of Schedule 2 to the Regulations;

Statement made on 03 June 2019 at 9:24am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – applicant was not subject of nomination – nominator has not demonstrated the continued employment service of applicant – substantial information from the nominator – no adverse information about applicant – tribunal approved nomination – position still available – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223(2), rr 1.13A, 1.13B, 5.19(3)

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 24 January 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 5 June 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 applicant is seeking the Subclass 186 visa in the Temporary Residence Transition stream, to work in the nominated position of Tandem Master, Technicians and Trades Workers nec ANZSCO 399999

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

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

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

   Background

8. The applicant is a 31 year old citizen of the Federal Republic of Germany, currently residing in Cairns, Queensland. The applicant arrived in Australia in late 2012, and commenced casual employment with the applicant, packing parachutes and completing jump preparations for the nominator’s regular sky diving activities at its Cairns site.

9. From June 2013 to the date of application on 5 June 2017, the applicant was employed full time by the nominator on a Subclass 457 visa, first issued on 19 December 2012, as a tandem instructor. The applicant is licenced by the Australian Parachute Federation, and continues to be employed by the nominator as a tandem instructor.

10. The applicant has worked in the role continuously for the past 6.5 years. The Department file records that, at the time the application was refused on 24 January 2018 for want of a successful nomination, “all other requirements met”.

11. On 28 December 2017, the Department refused the nominator’s application on the basis the nominator did not satisfy r. 5.19(3), as the nominator had not demonstrated the continued employment service of the applicant for the required period of 2 years in the period of 3 years immediately preceding the application.

12. On 31 May 2019, the Tribunal on review set-aside the Department’s decision[1] following the receipt of substantial further information from the nominator and a review evidence hearing with a witness for the nominator and evidence not previously made available.

    [1] Tribunal case file 1733059

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the Minister has approved the nomination.

    Nomination of a position

14. 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.

15. 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.

16. The Tribunal has had regard to the Department’s electronic file records[2], the Tribunal’s case file[3] and requests for information now produced on the nominator’s related Tribunal case file[4].

    [2] BCC 2017/1984153

    [3] 1803755

    [4] 1733059

17. The Tribunal finds on the information available that the nomination has now been approved following the Tribunal’s decision in case number 1733059, where the Tribunal set aside the decision under review and substituted a decision approving the nomination.

18. The Tribunal is further satisfied that there is no adverse information known about the applicant or any person associated with the applicant, the nomination having been approved and which has not been subsequently withdrawn. The Tribunal is satisfied on the information that the position is still available to the applicant subject to a written employment contract for full-time employment, and which employment will continue for a minimum period of 2 years without excluding a possible extension. The Tribunal is also satisfied that the visa application was made no more than 6 months following the nomination of the position, approved by the Tribunal on review on 31 May 2019.

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.186.223 of Schedule 2 to the Regulations.

    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.