Walker (Migration)

[2018] AATA 3438

Walker (Migration) [2018] AATA 3438 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David John Walker
Ms Gemma Louise Walker
Mr Jack Walker

CASE NUMBER:  1619122

HOME AFFAIRS REFERENCE(S):           BCC2016/683259

MEMBER:Kate Timbs

DATE:10 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Mr Walker meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

Statement made on 10 August 2018 at 9:24am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – 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(3), Schedule 2, cls 186.223(2), 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 to refuse to grant Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (the Act).

2. Mr Walker applied for the visas in the Temporary Residence Transition Stream on 17 February 2016 for himself, his spouse and their son. On 25 October 2016, the delegate refused to grant the visas on the basis that Mr Walker did not meet the criteria for the grant of the visa in clause 186.223 of Schedule 1 to the Migration Regulations 1994 (the Regulations).

3. Mr Walker applied for review of that decision on 15 November 2016. The Tribunal has made a decision on the review without holding a hearing.

   RELEVANT LAW AND ISSUE FOR THE TRIBUNAL TO DETERMINE

4. To be granted the visa, Mr Walker and the members of his family must meet all relevant criteria in part 186 of Schedule 1 to the Regulations.

5. Mr Walker is the primary applicant and to be granted the visa, among other things, he must satisfy the requirements of clause 186.223 discussed below.

6. The other applicants are secondary applicants for the visa and, among other things, they must satisfy the criterion in clause 186.311 that they are members of the family unit of a person who holds a Subclass 186 visa on the basis that they satisfied the relevant primary criteria.

7. To deal with the application for review, the Tribunal considered whether Mr Walker meets the clause 186.223 requirements.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 186.223 requires that the position to which the application relates is the subject of an application for approval of a nominated position under regulation 5.19(3). Mr Walker must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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, it 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  or that 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. On 17 February 2016, the company applied for approval of a nomination under regulation 5.19. It identified Mr Walker as the relevant subclass 457 visa holder and made relevant declarations in relation to the position. However, the delegate refused to approve the nomination and found Mr Walker did not satisfy clause 186.223 for that reason.

11. On 10 August 2016, the Tribunal (as presently constituted) set aside the decision to refuse to approve the company’s nomination and substituted the decision to approve it. In that case, Mr Walker satisfies the criterion that the nomination has been approved. The Tribunal is satisfied the company has not withdrawn the nomination and, in the course of approving the nomination, it found there was no relevant adverse information known to migration. It also found that Mr Walker is a senior executive of the company and that the position is still available to him. Finally, it finds he applied for the visa before the Tribunal approved the nomination.

12. Having made those findings, the Tribunal finds that Mr Walker satisfies the criteria in clause 186.223. It will set aside the decision to refuse to grant the visas for that reason and send the matter back to the Department. Another delegate will then consider whether he meets all other relevant primary criteria for the grant of a visa.

13. The secondary applicants will satisfy clause 186.311 if the Department grants Mr Walker a visa on that basis. If so, the Department will consider whether they meet all other relevant secondary criteria for the grant of a visa.

    DECISION

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration with the direction that Mr Walker meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Regulations.

    Kate Timbs
    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.