Wicks (Migration)

[2020] AATA 5718

Wicks (Migration) [2020] AATA 5718 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ciaran Andrew Wicks
Ms Clare Emma Sillery

CASE NUMBER:  1833395

HOME AFFAIRS REFERENCE(S):          BCC2018/2574140

MEMBER:Alan McMurran

DATE:27 November 2020

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.186.223(2) of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Secondary Applicant

The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that 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 27 November 2020 at 12:03pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Sheet Metal Trades Worker – nomination approved upon review – decision under review remitted      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 14 November 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2018 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 9 July 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 (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 Sheet Metal Trades Worker (ANZSCO 322211 for the sponsoring employer, KFC Roofing Pty Ltd (the nominator).[1] The second-named applicant is the applicant’s spouse.

   [1] T case 1828368

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because the Minister had not approved the nomination of the occupation for the specified position.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Minister has approved the nomination.

   Nomination of a position

9. 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.

10. In addition, this criterion 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 (within the meaning of r.1.13A and r.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.

11. On 27 November 2020, the Tribunal on review[2] found that the nominator met the requirements under the Regulations for the nomination, and the nomination for the occupation specified in the application was approved.

    [2] Ibid

12. Therefore cl. 186.223(2) is met.

13. The Tribunal finds on the information before it that:

    a.The position to which the application relates is the position nominated;

    b.The nomination is approved;

    c.The nomination has not been withdrawn;

    d.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 r.1.13A and r.1.13B);

    e.The visa application was made no more than six months after the nomination of the position was approved.

14. Therefore, cl.186.223 is met.

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

    Secondary applicant

16. The second-named applicant is the spouse of the applicant, and a member of the family unit under r.186.311 of a person who has satisfied the primary criteria for the grant of the visa.

17. The second-named applicant has made a combined application with the primary applicant. The appropriate course is to remit the application for reconsideration of any remaining criteria.

    DECISION

18. 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 (Employer Nomination Scheme) visa:

    ·cl.186.223(2) of Schedule 2 to the Regulations; and

    ·cl.186.223 of Schedule 2 to the Regulations.

    Secondary Applicant

19. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that 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;

    Alan McMurran
    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.