Stumbo (Migration)

[2023] AATA 1411

Stumbo (Migration) [2023] AATA 1411 (3 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrea Stumbo
Mrs Rosita Ferraris

REPRESENTATIVE:  Ms Preeti Puri (MARN: 0960289)

CASE NUMBER:  1924776

HOME AFFAIRS REFERENCE(S):          BCC2017/4800639

MEMBER:P. Maishman

DATE:3 May 2023

PLACE OF DECISION:  Perth

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; and

The application for the second named applicant is remitted for reconsideration in accordance with this direction.

Statement made on 03 May 2023 at 3:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Cook – Tribunal set aside the Department’s decision ––nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, 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 Minister for Home Affairs on 27 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 December 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 (Cth) (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because his employer’s application for approval of the nomination was not approved.

6. The applicants appeared before the Tribunal on 14 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Walter Buti on behalf of the sponsor, Blueshell Holdings Pty Ltd as trustee for The Hillarys Unit Trust.

7. The applicants were represented in relation to the review.

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 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 reg 1.13A and reg 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 was nominated by Blueshell Holdings Pty Ltd as trustee for The Hillarys Unit Trust in relation to the position of cook at its restaurant. The position is the same as in the reg 5.19 nomination application and the nominator is the employer.

13. The nomination was initially refused by the Department. However, on 3 May 2023 this Tribunal made the decision to set aside the refusal and substituted a decision to approve the nomination (Case Number 1921691).

14. The Tribunal is satisfied it is reasonable to disregard adverse information known to Immigration about the nominator. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is also satisfied that the visa application was not made more than six months after the nomination of the position was approved.

15. Therefore, cl 186.233 is met.

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

    The second named applicant applied for their visa on the basis of being a member of the family unit of the applicant. Accordingly, her application will be determined by reference to the outcome of the applicant’s application on remitted to the Department for reconsideration.

    DECISION

17. 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.

18. The application for the second named applicant is remitted for reconsideration in accordance with this direction.

    P. Maishman
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.