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KAUR (Migration) [2018] AATA  2676  (22 June 2018)

Last Updated: 8 August 2018

KAUR (Migration)  [2018] AATA 2676  (22 June 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs SHIVJEET KAUR
Mr SUKHDEEP SINGH
Mr PAHULDEEP SINGH

CASE NUMBER: 1701787

DIBP REFERENCE(S): BCC2016/1313389

MEMBER: Cathrine Burnett-Wake

DATE: 22 June 2018

PLACE OF DECISION: Melbourne

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.

Statement made on 22 June 2018 at 2:56pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Approval of nomination – Relevant nomination approved – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 25 January 2017 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 30 March 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 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook. 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 visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because there was no approved nomination.
6. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
7. The applicants were represented in relation to the review by their registered migration agent.
8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

Nomination of a position

10. 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.
11. 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.
12. The applicant's nominating employer, Graceland Manor Pty Ltd, applied to the Department for the approval of the position of Cook in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.
13. On 22 June 2018, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination in respect of the applicant, who was a 457 visa holder at the time of the nomination, under r.5.19(3).
14. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl.186.223(2).
15. Therefore, cl.186.223 is met.
16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
17. The application of the second and third named visa applicants is based on being a member of the family unit of the first named visa applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named visa applicant with a finding that she meets the requirements of cl.186.223, the remaining criteria for her application should now be reconsidered, in addition the application of the second and third named visa applicants, as members of the family unit of the first named visa applicant, should now also be reconsidered in full.

DECISION

18. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
    • cl.186.223(2) of Schedule 2 to the Regulations.

Cathrine Burnett-Wake
Member