Adhikary (Migration)

[2021] AATA 2513

Adhikary (Migration) [2021] AATA 2513 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prabin Adhikary
Mrs Nira POUDYAL ADHIKARY
Mr Pranabh ADHIKARY

CASE NUMBER:  1819442

DIBP REFERENCE(S):  BCC2017/2315078

MEMBER:Mark O'Loughlin

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 May 2021 at 11:11 am (SA time)

DATE OF WRITTEN RECORD:                25 June 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions under review.

Statement made on 25 June 2021 at 2:56pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant or Cafe Manager – subject of an approved nomination – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 22 June 2018 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. At the hearing on 24 May 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by the delegate of the Minister for Home Affairs on 22 June 2008, that decision being to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958, which I will refer to as the Act. The applicants applied for the visas on 29 June 2017. The criteria for the grant of a subclass 186 visa are set out in part 186 of schedule 2 to the Migration Regulations.

4. The primary criteria must be satisfied by at least one applicant and the other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.

5. Applicants seeking to satisfy the primary criteria must meet the common criteria as well as the criteria of one of three alternate visa streams, one of which is the temporary resident transition stream.

6. Relevantly applicants seeking to satisfy the secondary criteria must satisfy criterion 186.311, which requires that such applicant is a member of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of them satisfying the primary criteria for the grant of a visa.

7. In the present case the first named applicant who I will refer to as the Applicant is seeking a visa in the temporary residence transition stream, to work in the nominated position of Restaurant or Cafe Manager. The delegate refused to grant the visas because the applicant did not meet clause 186.223 of schedule 2 to the Regulations because the Minister did not approve the nomination of the applicant’s position.

8. The applicants appeared before the tribunal on 24 May 2021 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent.  For the following reasons the tribunal has concluded that the decision under review should be affirmed.

9. Subclass 2 of clause 186.222 as applicable in this case relevantly requires that the position to which the application relates be the subject of a nomination which has been approved. 

10. On 6 April 2021, the applicants were invited to comment or respond to information that would be the reason or part of the reason for affirming the decisions under review.  That information was that the application for approval of the nominated position, which had been applied for by Kathmandu Delicious Pty Ltd had been refused and that on review the AAT had affirmed that decision to refuse.

11. The applicants replied within the relevant time limit indicating a strong preference to remain in Australia and citing a range of what I will describe as compassionate considerations.  The applicants did not dispute that the relevant nomination had not been approved.

12. In evidence today the applicants repeated and expanded on the compassionate considerations to which they had asked me to have regard but did not suggest that there was a relevant nomination that had been approved.

13. The tribunal finds that the applicant does not meet clause 186.223(2) and therefore does not meet clause 186.223.  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.

14. As the requirements that must be met by a person seeking a visa in the temporary residence transition stream have not been met, the decision under review in relation to the applicant must be affirmed.  That being the case the secondary applicants do not meet clause 186.311. 

15. The decisions in relation to the other applicants must be affirmed.

    DECISION

16. The Tribunal affirms the decisions under review.

    Mark O'Loughlin
    Member