Takahashi (Migration)

[2023] AATA 1415

Takahashi (Migration) [2023] AATA 1415 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hibiki Takahashi
Mrs Keiko Takahashi
Mr Kokoro Takahashi

REPRESENTATIVE:  Mr Ernie Hu

CASE NUMBER:  1928061

HOME AFFAIRS REFERENCE(S):          BCC2018/5444497

MEMBER:George Hallwood

DATE:1 May 2023

PLACE OF DECISION:  Adelaide

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 186.223 of Schedule 2 to the Regulations.

Statement made on 01 May 2023 at 2:17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Corporate General Manager –nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted 

LEGISLATION
Migration Act 1958, s 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 17 September 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 4 December 2018. 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 Temporary Residence Transition stream, to work in the nominated position of Corporate General Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the primary applicant was not the subject of an approved nomination.

6. The primary applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. As this was a combined hearing with that of the related nomination the Tribunal also received oral evidence from Mr Takahashi on behalf of the nominator – case number 1923081.

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 primary applicant meets the requirements of cl. 186.223 of the Regulations.

   Nomination of a position

10. 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.

11. 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 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 Tribunal finds:

    ·     on 1 May 2023 the nomination in the Temporary Residence Transition stream that identifies the related position to which the application relates, and identifies Mr Takahashi as the visa applicant, was approved. The position of Corporate General Manager with Plus One Point Pty Ltd was the one that was the subject of the declaration that was required to be made as part of the current visa application;

    ·     the nomination has been approved and has not been subsequently withdrawn;

    ·     for reasons detailed in the related nomination decision, there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person;

    ·     based on advice from the nominator at the hearing, the position is still available to the applicant; and

    ·     as the nomination was approved today, and the visa application was made on 4 December 2018, the visa application was made no more than six months after the nomination of the position was approved.

13. Therefore, cl 186.223 is met.

    CONCLUDING PARAGRAPHS

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

15. The secondary applicants in this matter are members of the family unit of the primary applicant and were refused on the basis of the primary applicant’s visa refusal. For that reason, the Tribunal recommends the applications of the secondary applicant’s be reconsidered together with that of the primary applicant.

    DECISION

16. 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 186.223 of Schedule 2 to the Regulations.

    George Hallwood
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.