Ahmed (Migration)

[2019] AATA 4911

Ahmed (Migration) [2019] AATA 4911 (14 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Saief Ahmed
Afrin Jahan

CASE NUMBER:  1719973

HOME AFFAIRS REFERENCE:                BCC2016/3070453

MEMBER:Lilly Mojsin

DATE:14 November 2019

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;

Statement made on 14 November 2019 at 1:11pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Immigration and Border Protection on 14 August 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 15 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 (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 Labour Agreement stream.

4. The Tribunal did not invite the applicants to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

5. The applicants were represented in relation to the review by their registered migration agent.

6. In the present review, the first named applicant (applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant (General) ANZSCO (221111).

7. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, that had been made by Lolita Petroleum Sales (Villawood) Pty Ltd trading as Apex Petroleum Villawood (ACN 608219405).

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 186.233 as applicable in this review is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Temporary Residence Transition stream. The position must be the one that was the subject of the declaration made as part of the current visa application.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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.

10. The Tribunal [1724529] approved the nomination by Lolita Petroleum Sales (Villawood) Pty Ltd trading as Apex Petroleum Villawood (ACN 608219405) for the occupation of Accountant (General) ANZSCO (221111).

11. On the basis that the Tribunal is satisfied that the primary applicant has satisfied cl.186.223, the Tribunal is thereby satisfied that the secondary applicant is a member of a family unit that has satisfied the appropriate criteria for a grant of the visa, including cl.186.311.

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

    DECISION

13. 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 and

    The Tribunal remits the application in respect of the secondary applicant for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations

    Lilly Mojsin
    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.