Hamajima (Migration) [2018] AATA 1158 (22 March 2018)

Last Updated: 10 May 2018

Hamajima (Migration) [2018] AATA 1158 (22 March 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Eri Hamajima

CASE NUMBER: 1802183

DIBP REFERENCE(S): BCC2017/2026370

MEMBER: Jade Murphy

DATE OF ORAL DECISION: 22 March 2018 at 4:21pm (VIC time)

DATE OF WRITTEN STATEMENT: 23 March 2018

PLACE OF DECISION: Melbourne

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

Statement made on 23 March 2018 at 9:42am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Withdrawn nomination – Not subject to an approved nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19, 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 Home Affairs on 10 January 2018 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 8 June 2017. 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 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 ‘Chef’. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.
5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by ‘Avanti Investments (WA) Pty Ltd’ was withdrawn on 20 November 2017.
6. The applicant appeared before the Tribunal on 22 March 2018 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is cl.186.223.

Nomination of a position

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant 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.
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 explained that one of the criteria for the grant of the visa is that the relevant nomination has not been withdrawn. As recorded in the primary decision, a copy of which the primary applicant provided to the Tribunal, this position nomination was withdrawn and is no longer available to her.
12. At hearing, the applicant made submissions regarding some workplace issues and medical conditions which she believed led to the withdrawal of the nomination.
13. No evidence was presented to the Tribunal to show that the applicant is the subject of an approved nomination.
14. Based on the information before it in the delegate’s decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination. Therefore, cl.186.223 is not met.
15. 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

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

Jade Murphy
Member