NIWAS (Migration) [2022] AATA 1679 (3 June 2022)

Last Updated: 15 June 2022

NIWAS (Migration) [2022] AATA 1679 (3 June 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr RAM NIWAS
Mrs SARITA DEVI
Miss ARADHYA BANWALA
Miss SUMEDHA SUMEDHA

REPRESENTATIVE: Mr SUBENDRA VIMALARAJAH (MARN: 9904303)

CASE NUMBER: 1910413

HOME AFFAIRS REFERENCE(S): BCC2016/3082191

MEMBER: W Frost

DATE: 3 June 2022

PLACE OF DECISION: Canberra

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.

Statement made on 03 June 2022 at 3:10pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – 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 for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicants applied for the visas on 16 September 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 (Cth) (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 (Applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘Cook’ (ANZSCO 351411) with Mr Haseeb Miazad, trading under the business name, ‘Bamiyan Restaurant’ (Nominator). The related nomination for the position of ‘Cook’ with the Nominator was also made on 16 September 2016.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because they were not satisfied that the Nominator had fulfilled its commitment in relation to meeting its training requirements during the period of the Nominator’s most recent approval as a standard business sponsor.

6. The Applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Miazad on behalf of the Nominator. The applicants were also represented in relation to the review by their registered migration agent Mr Subendra Vimalarajah.

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 Applicant meets the requirements of cl.186.233 of Schedule 2 of the Regulations.

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 reg 1.13A and reg 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 related nomination for approval of a nomination in the Temporary Residence Transition stream sought to meet the requirements of r.5.19(3), the Applicant is identified in that application as the holder of a Temporary Work (Skilled) (subclass 457) visa. The position is one that was the subject of the declaration that was required to be made as part of the current visa application. On the information before the Tribunal, it finds that the Nominator is the person who will employ the Applicant. The Applicant is currently employed by the Nominator and the Tribunal finds that the position is still available to the Applicant.

12. The Tribunal approved the related nomination on 27 May 2022 and it has not been withdrawn.

13. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person.

15. Therefore, cl 186.223 is met.

16. The Tribunal notes that, under cl.186.311 of the Regulations, secondary applicants for a Subclass 186 (Employer Nomination Scheme) visa, such as Mrs Sarita Devi, Miss Aradhya Banwala and Miss Sumedha, must be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of a visa and have made a combined application with the primary applicant. The requirement that the primary visa applicant, here being the Applicant, hold a Subclass 186 visa, means that the Tribunal cannot presently make a positive finding in relation to the secondary applicants’ claims for Subclass 186 visas because the primary Applicant does not yet hold such a visa. Accordingly, and in light of the Tribunal’s findings about the primary Applicant, the Tribunal considers that the application of the secondary visa applicants, being Mrs Sarita Devi, Miss Aradhya Banwala and Miss Sumedha, should also be reconsidered.

17. Therefore, given the Tribunal’s findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

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 186.233 of Schedule 2 to the Regulations.

W Frost
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.