1506575 (Migration)

[2016] AATA 4362

1506575 (Migration) [2016] AATA 4362 (8 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamaljit Kumar

CASE NUMBER:  1506575

DIBP REFERENCE(S):  BCC2014/1496563

MEMBER:Denise Connolly

DATE:8 September 2016

PLACE OF DECISION:  Sydney

DECISION: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 of Schedule 2 to the Regulations.

Statement made on 08 September 2016 at 4:31pm

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 on 4 May 2015 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 to the Department of Immigration for the visa on 18 June 2014. 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 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 Wholesaler. 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 was not approved.

6. The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating employer.   

7. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the relevant nomination has been approved.  

Nomination of a position

1. 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.

2. 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.

1. The applicant’s nominating employer, Fettayleh Wholesales Meat Supplies Pty Ltd, applied to the Department for approval of the position of Wholesaler. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. On 8 September 2016 the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination under r.5.19(3).

2. On the evidence before it, the Tribunal is satisfied that:

• the position is the same one as was the subject of the r.5.19(3) nomination application, the applicant was identified as the Subclass 457 visa holder in the nomination, and the position is the same as that in the visa application declaration

• the nomination has been approved

• the nomination has not since been withdrawn

• 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.

1. The nominating employer had been the subject of a sponsorship bar decision made on 18 February 2015 for a period of 12 months. The decision to impose the bar was made on the basis that the nominating employer had not kept verifiable records of wages paid to two of its sponsored Subclass 457 visa holder employees, including the applicant. The Tribunal notes that the nominating employer has since paid the Subclass 457 visa holders by electronic bank transfer. The Tribunal also notes the delegate’s finding in that case that the decision to do this was the nominating employer’s and not at the direction of the Department. Overall, having taken the nominating employer’s evidence on this issue, the Tribunal is satisfied that it has now rectified its wage payment process so that it is complying with its obligation to keep records. The Tribunal is also mindful that the period of the bar has now passed. In these circumstances, the Tribunal is satisfied it is reasonable to disregard that information.

2. Therefore, the Tribunal finds that cl.186.223 is met.

3. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. 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 of Schedule 2 to the Regulations.

Denise Connolly
A/g Senior Member