Vasilev (Migration)

[2020] AATA 1165

Vasilev (Migration) [2020] AATA 1165 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tihomir Aleksandrov Vasilev
Ms Antoniya Gencheva Vasileva
Ms Viktoria Tihomirova Vasileva
Ms Denitsa Tihomirova Vasileva

CASE NUMBER:  1725231

HOME AFFAIRS REFERENCE(S):          BCC2017/2319283

MEMBER:Susan Trotter

DATE:21 February 2020

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.186.223(2) of Schedule 2 to the Regulations

Statement made on 21 February 2020 at 4:04pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Apiarist – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 26 September 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 29 June 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 (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 Apiarist for Central Coast Winery Pty Ltd. The Temporary Residence Transition stream, prior to 18 March 2018, enabled Subclass 457 visa holders who had worked for their employer for two years to apply for a permanent visa where the employer had offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination. The delegate found that the nomination by Central Coast Winery Pty Ltd had been refused on 10 August 2017 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole. Further, consequently, the other applicants did not meet the secondary criterion in cl.186.311 as required.

6. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 16 October 2017.

7. The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments.

8. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

11. 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.

12. Records of the Department of Home Affairs (the Department) indicate that the applicant’s employer, Central Coast Winery Pty Ltd, made an application to have the position of Apiarist approved, with the applicant as the nominee, with the Department on 29 June 2017. The nomination application was refused on 10 August 2017 and Central Coast Winery Pty Ltd applied to the Tribunal seeking review of that decision on 30 August 2017.

13. On 21 February 2020, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Central Coast Winery Pty Ltd.

14. Therefore, cl.186.223(2) is now met in relation to the applicant.

15. As the other named applicants applied on the basis of each being a member of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

    Conclusion

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

    DECISION

17. 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(2) of Schedule 2 to the Regulations.

    Susan Trotter
    Member

    
    

    ATTACHMENT

    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.