Wauchope (Migration)

[2021] AATA 5610

Wauchope (Migration) [2021] AATA 5610 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jonathan Nathanael Wauchope
Mrs Victoria Wen-Ling Wauchope
Mr Kane Chang-Kai Wauchope

CASE NUMBER:  1829601

HOME AFFAIRS REFERENCE(S):          BCC2018/544978

MEMBER:Deputy President J.L Redfern PSM

DATE:25 October 2021

PLACE OF DECISION:  Sydney

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 25 October 2021 at 1:17 PM

CATCHWORDS:

MIGRATION – Employer Nomination (Permanent) (Subclass 186) visa – Direct Entry stream – Marketing Specialist – whether subject of an approved nomination – decision under review remit with direction

LEGISLATION:

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12, Sch 2 cl 186.233

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2018 to refuse to grant the applicants’ Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act). Employer nominations are intended to enable Australian employers to recruit, for permanent positions, skilled workers either from overseas or who are temporarily in Australia, where the employer has not been able to fulfil their needs from the Australian work force or through their own training efforts.

2. The applicants, Jonathan Nathanael Wauchope, who is the primary applicant, and his spouse, Mrs Victoria Wen-Ling Wauchope, applied for the visas on 1 February 2018. Their son who was born in Australia, was added to the application in April 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, Mr Wauchope is applying for the visa in the Direct Entry stream, to work in the nominated position of marketing specialist (ANZSCO 225113). He was nominated for this position by MIQ Digital Australia Pty Limited (MIQ). MIQ is a programmatic media business, operating through digital radio, television and the Internet. MIQ is the Australian subsidiary of a global group with headquarters in the United Kingdom. The group is reported to have generated revenue of nearly $300 million in the year ended 31 December 2019 and operates a business that runs programmatic advertising campaigns for clients, delivered through AI powered analytics and purpose-built technology.

5. The delegate refused to approve MIQ’s application for approval of the nominated position because the delegate was not satisfied Mr Wauchope would be employed in the role for two years. The delegate was not satisfied about the financial position of MIQ based on the material provided by MIQ. As approval of the nomination is an essential requirement for the grant of a subclass 186 visa, the delegate also refused Mr Wauchope’s application. In short, the delegate found that Mr Wauchope did not meet the relevant criteria in cl 186.233 of Schedule 2 to the Regulations because MIQ’s nomination for the position was not approved. The delegate also refused the applications of Victoria and Kane Wauchope, which were dependent on Mr Wauchope satisfying the primary criteria in cl 186.233 pf Schedule 2 to the Regulations. The delegate refused the application on this basis alone and did not assess any of the other requirements for the visa.

6. At the time MIQ applied for approval of its nomination of Mr Wauchope for the position of marketing specialist, it also sought approval for the nomination of another employee, James Anderson, in a similar role as a marketing specialist. The nomination and related visa application for James Anderson were also refused by the delegate for the same reasons.

7. MIQ made an application to the Tribunal for review of the refusal of the nominations in both matters. In June 2021 the Tribunal requested further information in support of the claims, which was provided in July 2021. MIQ also provided extensive submissions addressing each of the relevant requirements in the regulation. Mr Wauchope and James Anderson (matter no. 1830394) applied for review of their related work visas. Because there were common issues relevant to the determination of each of the reviews, the nominations and related visa applications were listed for hearing concurrently and all applications were listed on the same day. Relevantly, the outcome of the proceedings in relation to the MIQ nominations are critical to the potential outcome in the related visa applications.   

8. MIQ appeared before the Tribunal on 6 October 2021 and was represented in relation to the review by its lawyers. Oral evidence was provided by the chief executive officer, Mr Jason Scott, and the finance manager, Mr Benjamin Prentice. Mr Wauchope gave evidence about his role with MIQ. The review of the related visa application by Mr Wauchope was listed for hearing on the same day and the evidence given by him in the MIQ proceedings was taken as evidence in his proceedings. The proceedings in relation to the nomination of James Anderson were listed after these proceedings. Extensive evidence was given by Mr Scott and Mr Prentice about to the operation of the business. Given the common factual issues in dispute, it was agreed that the evidence in the earlier proceedings would be evidence in the later proceedings relating to the nomination and visa application in respect of James Anderson.

9. In the MIQ proceedings (matter no. 1826346) I found that MIQ met all of the requirements for approval of the nomination in respect of Mr Wauchope. I have therefore set aside the decision refusing the nomination and substituted a decision approving the nomination.

10. For the following reasons, I have concluded that the matter should be remitted for reconsideration. I note that I was provided with considerable assistance from the lawyers for MIQ, Ajuria Lawyers, who provided comprehensive, focussed probative submissions and evidence specifically directed to each of the requirements for approval of the nomination and in relation to the requirements for the visa. Notably, Ajuria complied with the COVID-19 Special Measures Practice Direction – Migration and Refugee Division.

    RELEVANT LAW

11. The delegate was not satisfied Mr Wauchope met the requirements of cl 186.233 of Schedule 2 of the Regulations. Because the delegate was not satisfied that Jonathan Wauchope met the requirements of cl 186.233 and he could not be granted the visa, the delegate was not satisfied that Victoria and Kane Wauchope met the requirements of cl 186.311 as members of his family unit.

12. Clause 186.233 is 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.

13. 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 (refer cl 186.233(1)). There is no dispute that these requirements are met. The visa application completed by Mr Wauchope was in the approved form, he made the relevant declaration and the position to which his application relates is the position nominated by MIQ for approval under reg 5.19 of Schedule 2 to the Regulations.

14. Clause 186.233 also requires that:

    (1)the person who will employ the applicant is the person who made nomination (cl 186.233(2));

    (2)the nomination has been approved (cl 186.233(3)) and has not been subsequently withdrawn (cl 186.233(4));

    (3)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 (cl 186.233(4A));

    (4)the position is still available to the applicant (cl 186.233(5)); and

    (5)the visa application was made no more than six months after the nomination of the position was approved (cl 186.233(6)).

15. Part 186.3 of Schedule 2 to the Regulations sets out the secondary criteria for applicants who are members of the family unit of a person who satisfies the primary criteria. Relevantly, cl. 186.311 provides that the applicant must be a member of the family unit of the primary applicant who satisfies the primary criteria for the grant of the visa. Member of a family unit includes the spouse or de facto partner of the family head or a child or step-child of the spouse or de facto of the family head who is under 18 years.[1]

    [1] reg 1.12 of the Migration Regulations 1994 (Cth)

16. The delegate refused the application for the grant of the visa on the grounds that the nomination by MIQ for Mr Wauchope’s position was not approved. The delegate did not assess the other requirements in cl 186.233. The delegate also refused the secondary applications of Victoria Wen-Ling Wauchope and Kane Chang-Kai Wauchope, although it was accepted, and this is not in dispute, they are members of the family unit.

    CONSIDERATION

17. The threshold issue in the present case, being the basis for the refusal of the visa, is whether the criteria set out in cl 186.233(3) is satisfied. In the related application by MIQ, I have approved the nomination for the position relating to Mr Wauchope. Furthermore, there is no evidence that the nomination has been subsequently withdrawn. Relevantly, MIQ has rigorously pursued the review of the decision not to approve the nomination and this continued to be the case up until the time of my decision in the related MIQ proceedings. Accordingly, I find that the criteria in cls 186.233(3) and (4) are satisfied.

18. I have therefore assessed the balance of the criteria for cl 186.233.

19. MIQ is the company employing Mr Wauchope and it is also the company that made the nomination application. As such I am satisfied that the criterion in cl 186.233 (2) is met.

20. There is no evidence that there is adverse information known to the Department, either about MIQ or Mr Wauchope. In this regard, I refer to my findings in relation to the related MIQ proceedings and note that enquiries undertaken by me in respect of the of the Department of Home Affairs database known as the Integrated Client Services Environment (ICSE) records do not show that there is any adverse information recorded about Mr Wauchope. The criterion in cl 186.233(4A) is therefore met.

21. Having regard to the evidence of Mr Scott, I am satisfied that the role currently being undertaken by Mr Wauchope, which has been undertaken by him over the past five years is still available to him. As such, the criteria in cl 186.233(5) is met.

22. Finally, the application for the visa is still current and was not made more than six months after the nomination for the position has been approved, in satisfaction of the criteria in cl 186.233(6).

23. In conclusion, I find that the requirements of cl 186.233 are met.

24. In the evidence provided in support of the application, I have been provided with the marriage certificate dated 19 April 2014 evidencing the marriage between Jonathan Wauchope and Victoria Wauchope and the birth certificate for Kane Wauchope, evidencing that he was born in February 2018 and that Jonathan and Victoria Wauchope are his parents. Based on this evidence, I am satisfied that Victoria and Kane Wauchope are both members of the family unit of Jonathan Wauchope but they cannot satisfy the criteria in cl 186.311 unless and until the Minister is satisfied that Mr Wauchope satisfies all of the criteria for the visa.

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

    DECISION

26. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the criteria in cl 186.233 for a Subclass 186 (Employer Nomination Scheme) visa.

    J.L Redfern PSM
    Deputy President

    
    
    

    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.