Tokushev (Migration)

[2022] AATA 300

Tokushev (Migration) [2022] AATA 300 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rumen Valentinov Tokushev
Mrs Nevena Pavlova Tokusheva
Miss Dimana Rumenova Tokusheva

REPRESENTATIVE:  Mr Laurent Corgnet (MARN: 1467849)

CASE NUMBER:  1904205

HOME AFFAIRS REFERENCE(S):          BCC2017/2479402

MEMBER:De-Anne Kelly

DATE:4 February 2022

PLACE OF DECISION:  Brisbane

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.

Statement made on 04 February 2022 at 11:07am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 12 February 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 12 July 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 Restaurant Manager.

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 employer nomination application by The Trustee for La Piazza Unit Trust trading as La Piazza (Runaway Bay) Pty Ltd was refused being the application referred to in cl.186.233(1).

6. The applicant appeared before the Tribunal on 11 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andreas Unterberger.

7. The applicant was represented in relation to the review by Mr Laurent Corgnet MARN: 1467849.

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 applicants meet cl.186.233(3).

   (3)       The Minister has approved the nomination.

   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 visa application was acknowledged by the Department on 12 July 2017 and is consistent with the declaration in s.1114B(3)(d) of Schedule 1 being made in the application for the grant of the visa.

13. Mrs Svetlana Stoyanova and Mr Andreas Unterberger co-directors of La Piazza Unit Trust trading as La Piazza (Runaway Bay) Pty Ltd and made the nomination and signed the Employment Contract demonstrating that they are the persons who will employ the applicant and iare the persons who made the nomination. The application made was for the approval of the position of Restaurant Manager.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by the Mrs Svetlana Stoyanova and Mr Andreas Unterberger co-directors of La Piazza Unit Trust trading as La Piazza (Runaway Bay) Pty Ltd.

15. There is no information before the Tribunal constituting adverse information regarding the company or its State Manager. There is no evidence before the Tribunal that the Department had adverse information regarding Mrs Svetlana Stoyanova and Mr Andreas Unterberger co-directors of La Piazza Unit Trust trading as La Piazza (Runaway Bay) Pty Ltd, being the persons who made the nomination or their associates.

16. The most recent employment contract dated 30 December 2021 demonstrate that the position is still available to the applicant. The visa application was made on 12 July 2017, and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.186.233 is met.

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

19. The secondary visa applicants Mrs Nevena Pavlova Tokusheva and Miss Dimana Rumenova Tokusheva had their visa application refused by a delegate of the Minister on the basis that cl.186.311 of Schedule 2 to the Regulations was not satisfied. This clause provides that:

    186.311

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

20. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicants were members of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

21. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants visa applications to the Minister.

    DECISION

22. The Tribunal remits the applications 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.

    De-Anne Kelly
    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

    (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.