BADAL (Migration)

[2021] AATA 2524

BADAL (Migration) [2021] AATA 2524 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Shah Jamal BADAL
Ms Faeza KALAM
Ms Tabeea Zaheen JAMAL
Ms Areebah JAIYANA

CASE NUMBER:  1828564

HOME AFFAIRS REFERENCE(S):          BCC2017/1387990

MEMBER:Cathrine Burnett-Wake

DATE:22 June 2021

PLACE OF DECISION:  Melbourne

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 186.233(3) of Schedule 2 to the Regulations.

Statement made on 22 June 2021 at 12:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 17 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 14 April 2017. 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) (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. 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 Corporate General Manager with his employer Euro Foods Group Australia Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because there was no approved nomination.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

7. The applicant was represented in relation to their review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. 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 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.

12. The applicant's nominating employer, Euro Foods Group Australia Pty Ltd, applied to the Department for the approval of the position of Corporate General Manager in respect of the applicant. The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

13. On 22 June 2021, the Tribunal set aside the Department's decision and substituted a decision to approve the nomination in respect of the applicant.

14. As the relevant nomination in respect of the applicant has been approved, the applicant accordingly meets the requirement in cl.186.233(3).

15. Therefore, cl.186.233 is met.

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

17. The applications of the second named visa applicants are based on being a member of the family unit of the first named visa applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named visa applicant with a finding that he meets the requirements of cl.186.233, the remaining criteria for his application should now be reconsidered, in addition the applications of the second named visa applicants, as members of the family unit of the first named visa applicant, should now also be reconsidered in full.

    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(3) of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.