STRAMBACI (Migration)

[2018] AATA 1595

STRAMBACI (Migration) [2018] AATA 1595 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Valentina STRAMBACI

CASE NUMBER:  1722264

DIBP REFERENCE(S):  BCC2017/637969

MEMBER:R. Skaros

DATE:9 April 2018

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(2) of Schedule 2 to the Regulations.

Statement made on 09 April 2018 at 11:15am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(2)

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 31 August 2017 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 16 February 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 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 Café or Restaurant Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

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 associated nomination for the position was not approved.

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

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 cl.186.223(2).

   Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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, this criterion also requires that the nomination has been approved.

11. The applicant was identified in a nomination by Hi-Tek Fittings Pty Ltd as the relevant Subclass 457 visa holder for the position. On 25 July 2017 the Department refused to approve that nomination. Consequently, the applicant’s visa application was refused.

12. Hi-Tek Fittings Pty Ltd applied for review of the Department’s decision not to approve the nomination in respect of the applicant. On 5 March 2018 the Tribunal set aside the Department’s decision and made a decision approving the associated nomination.  

13. As the relevant nomination has now been approved, the Tribunal finds that the applicant meets cl.186.223(2).

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

    DECISION

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

    R. Skaros
    Member