Tyshynski (Migration)

[2021] AATA 2082

Tyshynski (Migration) [2021] AATA 2082 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Mark Tyshynski

CASE NUMBER:  1822214

HOME AFFAIRS REFERENCE(S):          BCC2017/3435659

MEMBER:K. Chapman

DATE:9 June 2021

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations.

Statement made on 09 June 2021 at 7:23pm  

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application set aside on review – long-term, continuing employee – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223           

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 24 July 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant applied for the visa on 20 September 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

2. 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.

3. In the present matter, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing Manager (ANZSCO 131112). This position was originally nominated by Western Allergy Australia Pty Ltd (which became Gamma Allergy Pty Ltd and is now known as Gamma Biomedical Pty Ltd, with continuous ACN 601 594 521), the applicant’s employer.

4. The delegate refused to grant the visa because the applicant did not meet cl.186.223, which requires him to be the subject of an approved nomination by the original nominating employer, which has not been withdrawn and with the position still being available to him. The delegate found that the nomination made by the nominator had been refused on 9 June 2018.

5. On 1 August 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review. The applicant appeared by telephone before the Tribunal on 18 May 2021 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there is an approved nomination in respect of the applicant.

   Nomination of a position

8. Clause 186.223, as applicable in this matter, 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 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.

9. 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.

10. The applicant’s nominating employer, now called Gamma Biomedical Pty Ltd ACN 601 594 521, applied to the Department for the approval of the position of Sales and Marketing Manager in respect of him. The Department refused to approve the nomination and the nominator applied to the Tribunal for review of that decision in a separate review application.

11. The applicant gave evidence to the Tribunal at hearing indicating that he is genuinely employed by the nominator in the role of a Sales and Marketing Manager and that they continue to require his services. He has been so employed as the holder of a Subclass 457 visa since around March 2015. The applicant indicated that his intention is to remain employed by the nominator if he is granted the Subclass 186 visa. The Tribunal accepts this evidence of the applicant.

12. On 9 June 2021, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination in respect of the nominator under r.5.19(3) (see AAT matter 1819056). The evidence before the Tribunal indicates that the original nominator will still employ the applicant in the position and proceed with the nomination, in addition to the visa application having been made within the requisite time frame. Further, there is no evidence of adverse information in relation to the nominator. Therefore, cl.186.223 is met by the applicant.

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

    DECISION

14. 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 of Schedule 2 to the Regulations.

    K. Chapman
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.