Balasooriya (Migration)

[2019] AATA 4524

Balasooriya (Migration) [2019] AATA 4524 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dinush Lakshan Balasooriya
Mrs O T M Ralahamilage Ishani Umayangani Kalawana

CASE NUMBER:  1816792

HOME AFFAIRS REFERENCE(S):           BCC2017/1913650

MEMBER:Antonio Dronjic

DATE:10 October 2019

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.186.223 of Schedule 2 to the Regulations.

Statement made on 10 October 2019 at 11:46am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination – Temporary Residence Transition stream – nomination refused – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 25 May 2018 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 30 May 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 (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 Temporary Residence Transition stream, to work in the nominated position of cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application lodged by the applicant’s employer, Mr Paranavithana Wimaladharma was refused by the Department on 17 April 2018. The delegate also refused to grant subclass 186 visas to the second named applicant on the grounds that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The applicants applied to this Tribunal for review of the primary decision on 8 June 2018 and were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it 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.

9. 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.

10. The Department's records indicate that the applicant's employer, Mr Paranavithana Wimaladharma, made an application to have the position of cook approved, with the applicant as the nominee, with the Department on 22 May 2017.

11. This nomination application was refused on 17 April 2018 and the employer sought review of that decision with the Tribunal on 24 April 2018. On 8 October 2019, the Tribunal (as presently constituted) set aside the Department's decision to refuse to approve the nomination and substituted a decision to approve the nomination by Mr Paranavithana Wimaladharma (see AAT/MRD decision 1811660 of 8 October 2019).

12. Accordingly, the Tribunal is satisfied that:

    ·     the person that will employ the applicant is Mr Paranavithana Wimaladharma, who made the nomination application;

    ·     that nomination has been approved and has not been withdrawn;

    ·     from a review of the Department's Integrated Client Services Environment electronic records, 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);

    ·     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.

13. Therefore, the Tribunal finds that cl.186.223 is met by the applicant.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second named applicant applied on the basis she is a member of the family unit of the applicant, her application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

    DECISION

15. 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 of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.