Wilson (Migration)

[2020] AATA 2332

Wilson (Migration) [2020] AATA 2332 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashley James Wilson

CASE NUMBER:  1716737

HOME AFFAIRS REFERENCE(S):          BCC2016/4242469

MEMBER:Denise Connolly

DATE:24 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 24 June 2020 at 11:43am

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

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 and Border Protection on 18 July 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 December 2016. 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 the applicant. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Floor Finisher.  

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal invited the applicant to a hearing to be held on 26 May 2020. The applicant did not attend the hearing. The applicant’s registered migration agent informed the Tribunal that they had not received instructions regarding the hearing and requested that the Tribunal make its decision on the papers. The Tribunal has decided to do so.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. The Tribunal wrote to the applicant on 3 June 2020 under s.359A of the Act seeking his comments on the following information:

    •On 30 June 2017 the relevant nominator in his case, Shorefloors Pty Ltd, sought review of the Department’s decision to refuse to approve the nomination application in which he was identified.

    •On 13 February 2020 Shorefloors Pty Ltd withdrew its application for review.

    •There is no evidence before the Tribunal that the application for approval of a nomination in the Temporary Residence Transition stream that identifies the applicant has been approved.

12. The Tribunal explained that the above information is relevant because one of the requirements for the grant of a Subclass 186 visa is that the position to which his visa application relates is the subject of a nomination that has been approved (cl.186.223(2)).  It also explained that if the Tribunal relies on the above information it would find that he is not the subject of an approved nomination, and it would then find that cl.186.223(2) is not met and the decision under review would be affirmed.

13. The applicant did not respond.

14. On the basis of the evidence before it, the Tribunal is not satisfied the applicant is the subject of an approved nomination.  Accordingly the Tribunal is not satisfied cl.186.223(2) is met.

15. Therefore, cl.186.223 is not met.

16. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Denise Connolly
    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.