Aryal (Migration)

[2021] AATA 1961

Aryal (Migration) [2021] AATA 1961 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ramesh Aryal
Ms Shristi Aryal
Mr Siraj Aryal

CASE NUMBER:  1900221

HOME AFFAIRS REFERENCE(S):          BCC2016/496081

MEMBER:Mr S Norman

DATE:10 May 2021

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(2) of Schedule 2 to the Regulations

Statement made on 10 May 2021 at 12:00pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Project Administrator – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 18 December 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 2 February 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Project Administrator (ANZSCO: 511112).

4. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. Essentially, clause 86.223 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.

8. On 15 November 2018, the nomination application by HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD (the associated nominator) was refused. The delegate went on to find the applicant did not meet cl.186.223(2) or cl.186.223. The delegate then went on to consider the application under the Agreement Stream and the Direct Entry Stream, and with respect to membership of the family unit. However, for the reasons set out in their decision, the delegate did not accept the applicant met the relevant criteria.

9. The delegate then refused to grant the applicants the Employer Nomination Scheme (subclass 186) visa.

10. By decision of 10 May 2021, the Tribunal approved the associated nomination application lodged by HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD (AAT # 1835501). As a consequence, the Tribunal finds that the applicant meets cl.186.223(2).

11. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

12. 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.186.223(2) of Schedule 2 to the Regulations

    Mr S Norman
    Member