Tamir (Migration)

[2018] AATA 1605

Tamir (Migration) [2018] AATA 1605 (5 April 2018)

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Barak Tamir
Ms Peleg Chen

CASE NUMBER:  1730129

DIBP REFERENCE(S):  BCC2016/2010239

MEMBER:Mark Bishop

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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(3) of Schedule 2 to the Regulations; and

The Tribunal remits the application for for Employer Nomination (Permanent) (Class EN) for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.311 of Schedule 2 to the Regulations

.

Statement made on 05 April 2018 at 1:28pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cls 186.233(3), 186.311

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 22 November 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 10 June 2016. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212) This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 the nomination lodged by the nominator Starshine Marketing Pty Ltd was rejected by the delegate.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 5 April 2018 the Tribunal approved the nomination in respect of the applicant under r.5.19 of the Regulations made by his employer Starshine Marketing Pty Ltd. The relevant case is Matter number 1725626. Hence the applicant now meets cl.187.233(3) of Schedule 2 to the Regulations.

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

   DECISION

9. The Tribunal remits the application for Employer Nomination) (Permanent) (Class EN) 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(3) of Schedule 2 to the Regulations.

10. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa: cl.186.311 of Schedule 2 to the Regulations

    Mark Bishop
    Member