Mangayao (Migration) [2020] AATA 1082 (7 April 2020)

Last Updated: 1 May 2020

Mangayao (Migration) [2020] AATA 1082 (7 April 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Froilan Cabatutan Mangayao
Mrs Jennifer Rosales Mangayao
Master Faust Julian Rosales Mangayao

CASE NUMBER: 1800714

HOME AFFAIRS REFERENCE(S): BCC2017/1045669

MEMBER: Alan McMurran

DATE: 7 April 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 of Schedule 2 to the Regulations; and

Secondary Applicants

• cl.186.311 requires the applications by the secondary Applicants to be remitted for further consideration.

Statement made on 07 April 2020 at 12:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Welder (First-Class) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application made 9 January 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 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 16 March 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The second named applicants are members of the family unit of the primary review applicant. The decision in relation to the secondary applicants follows the decision of the primary review applicant. 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).
3. The primary criteria must be satisfied by at least one applicant. Other members of the family unit 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 Welder (First-Class) ANZSCO 322313 for the nominator, Mining Equipment Maintenance Pty Ltd (the nominator).
5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the nominator on 24 October 2017 was refused.
6. The Tribunal requested further information from the applicant, who provided further supporting documents in support of both the review of the nomination, and for this review of the visa applications.
7. The Tribunal determined that following receipt of the additional information, a hearing was not necessary as the Tribunal was able to find in favour of the nomination on the material now before it.^[1]
8. On 7 April 2020, on review of the nomination application, the Tribunal decided to approve the nomination.
9. The applicants were represented in relation to the review by their registered migration agent.
10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has now approved and the requirements of regulation 186.223 met.

Nomination of a position

12. 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.
13. 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.
14. Information before the Tribunal indicates that the nomination application, which was approved by the Tribunal on review on 7 April 2020, has not been withdrawn. On the contrary, the applicant’s representative presses for the application to be finalised so that the nominee’s employment might continue.
15. The Tribunal has reviewed the available information on the Tribunal’s case file and from the electronic records produced from the Department’s file^[2] and finds that there is no adverse information known to Immigration about the nominator or a person associated with the nominator (or the nominee).
16. The tribunal is satisfied that the position of Welder (First-Class) ANZSCO 322313 is still available to the applicant in accordance with the applicant’s current employment contract with the nominator. The Tribunal finds it is further satisfied this visa application was made no more than 6 months following the approval of the nomination.
17. Therefore, cl.186.223 is met.
18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

Secondary applicants

19. The second and third named applicants are members of the family unit of the primary review applicant.
20. Given that the visa application decision by the Department in respect of the primary review applicant is now set aside, the appropriate course is to also remit the visa applications by the remaining applicants for further consideration.

DECISION

21. 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 of Schedule 2 to the Regulations; and

Secondary Applicants

• cl.186.311 requires the applications by the secondary Applicants to be remitted for further consideration.

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.

---

^[1] section 360 (2)
^[2] BCC2017/1045669