Whittaker (Migration)

[2019] AATA 2127

Whittaker (Migration) [2019] AATA 2127 (8 April 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shani May Whittaker
Mr Timothy John Gold

CASE NUMBER:  1621183

DIBP REFERENCE(S):  BCC2016/1387428

MEMBER:Ian Berry

DATE OF DECISION:  8 April 2019

DATE CORRIGENDUM

SIGNED:9 April 2019

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1.The decision, where it states cl.186.223 should state 186.233;

2.In paragraph 2, the phrase 186.223(2) should state 186.233(2);

3.In paragraph 5, the phrases Clause 186.223 and the heading for the legislation 186.223 should state Clause 186.233 and 186.233 respectively;

4.In paragraph 11, the four references to cl.186.223 should state 186.233;

5.In paragraph 12, the phrase cl.186.223 should state cl.186.233; and

6.In paragraph 15, the phrase cl.186.223 should state cl.186.233.

Ian Berry
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shani May Whittaker
Mr Timothy John Gold

CASE NUMBER:  1621183

DIBP REFERENCE(S):  BCC2016/1387428

MEMBER:Ian Berry

DATE:8 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl.186.223 of Schedule 2 to the Regulations

The second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Cl.186.311 of Schedule 2 to the regulations

Statement made on 08 April 2019 at 2:21pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 – Employer Nomination Scheme – nominator changed its name – relevant nomination approved – employment not withdrawn – member family unit – no jurisdiction for child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 186.233

CASES
Hasran v MIAC [2010] FCAFC 40

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 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 7 April 2016. The delegate refused to grant the visas on 6 December 2016.

2. The delegate refused to grant the visas because the first named applicant (Ms Whitaker now known as Ms Gold) did not meet 186.223(2) of Schedule 2 to the Migration Regulations 1994 (Regulations) because the associated nomination was not approved. 

3. On 26 March 2019, Ms Gold and her husband Mr Gold appeared before the Tribunal to give evidence and present arguments. They were both represented in relation to the review by their Migration Representative.

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

5. Clause 186.223 is applicable to this case, is set out hereunder:

   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:

   (i)subparagraph 5.19(4)(h)(i); or

   (ii)subregulation 5.19(2) as in force before 1 July 2012; 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 was the nominator in the application for approval.

   (3)the Minister has approved the nomination.

   (4)the nomination has not subsequently been withdrawn.

   (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.

   Daughter Aurora

6. After both the employer’s nomination and visa application refusals and the subsequent making of the applications for review, Ms Gold gave birth to her daughter Aurora in 2017. At the time of making this decision Aurora is not a party to her mother’s application for review.

7. Therefore, the Tribunal does not have jurisdiction to make a decision with respect to Aurora.

   Approval of the Nomination

8. Ms Gold applied for her visa on the basis of a nomination made by Bluefit Leisure Pty Ltd (the nominator changed its name to City Event Management Pty Ltd) (CVM).

9. CVM’s employer nomination application in which Ms Gold was identified as the relevant EN 186 visa applicant, which nomination was refused by the Department on 19 October 2016.

10. On 8 April 2019, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

11. As the relevant nomination in respect of Ms Gold has been approved (cl.186.223(2)), she continues to be employed with CVM (cl.186.223(5)), and that employment has not been withdrawn(cl.186.223(4)), now she meets the requirements in cl.186.223.

12. Therefore, cl.186.223 is met by Ms Gold.

13. In respect of Mr Gold, the Tribunal finds that based on the evidence before it, Mr Gold is a member of the family of Ms Gold for the purpose of satisfying cl.186.311.

14. Given these findings by the Tribunal, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of the visas.

    DECISION

15. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

    ·cl.186.223 of Schedule 2 to the Regulations.

16. The second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Cl.186.311 of Schedule 2 to the regulations

    Ian Berry
    Member