Varga (Migration)

[2022] AATA 3620

Varga (Migration) [2022] AATA 3620 (20 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Laszlo Varga

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  1906978

HOME AFFAIRS REFERENCE(S):          BCC2018/1000000

MEMBER:Nicola Findson

DATE:20 October 2022

PLACE OF DECISION:  Perth

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 186.233 of Schedule 2 to the Regulations.

Statement made on 20 October 2022 at 10:27pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.13A, 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 18 March 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 March 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Other Sports Coach or Instructor (ANZSCO 452317).

5. The delegate refused to grant the visa because the nominating employer’s nomination application associated with the applicant was refused. The Tribunal notes that the delegate’s decision records the applicant as not meeting the requirements of cl 186.223 of Schedule 2 to the Regulations. However, the relevant nomination requirements to be satisfied in the Direct Entry stream are contained in cl 186.233 of Schedule 2 to the Regulations.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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.

10. The applicant was nominated by Trailshare Pty Ltd, for the position of Other Sport Coach or Instructor (ANZSCO 452317).  The position is the same as in the reg 5.19 nomination application and the employer is the nominator.

11. The nomination was initially refused by the Department.  However, on 19 October 2022, this Tribunal made a decision to set aside the refusal and substituted a decision to approve the nomination (Case Number: 1902181).

12. 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.

13. There is no evidence before the Tribunal to suggest that there is any relevant adverse information known to the Department.  The Tribunal is satisfied there is no adverse information, within the meaning of r.1.13A, known to Immigration about the nominator or a person associated with the nominator.

14. Given the above, the Tribunal finds that the applicant meets all the requirements of cl 186.233.

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

    DECISION

16. 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 186.233 of Schedule 2 to the Regulations.

    Nicola Findson
    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.