Bhogal (Migration)

[2020] AATA 2268

Bhogal (Migration) [2020] AATA 2268 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Palwinder Kaur Bhogal
Mr Gagandeep Singh Bhogal

CASE NUMBER:  1803927

HOME AFFAIRS REFERENCE(S):          BCC2017/2311902

MEMBER:Stavros Georgiadis

DATE:4 June 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of all applicants, 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 4 June 2020 at 3:02pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – refusal set aside on review – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 186.223(2), 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 Home Affairs on 24 January 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 29 June 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 the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations as at the time of the decision, the appointment to which the visa application relates had not been approved (cl.186.223(2)). As a result, the second named applicant (as a member of the applicant’s family unit claimed as her spouse) was also not approved as the delegate considered he could not satisfy the criteria under cl.186.311, or other streams.

6. The applicants appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chhaya Dattatray Khot on behalf of the nominating employer, Shine Excellence Pty Ltd in the related AAT casefile review application, 1719929 refusing the nomination. Mrs Palwinder Kaur Bhogal is the primary applicant and her claimed spouse, Mr Gagandeep Singh Bhogal is secondary applicant for the Subclass 186 visas.  The related matters were heard together in a combined hearing. 

7. The applicants were represented in relation to the review by their registered migration agent who participated by way of telephone conference.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of all applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicants meet the criteria for grant of the Employer Nomination (Permanent) (Class EN) Subclass 186 visas.

   Nomination of a position

10. 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.

11. 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.

12. The Tribunal notes from the application on the Department file that the required declaration in paragraph 1114B(3)(d) of Schedule 1 has been made in relation to the position nominated by the nominator employer. The Tribunal is satisfied on the documentary and oral evidence before it that the position to which the application relates is that of Cook (ANZSCO 351411) and that the position was nominated by Shine Excellence Pty Ltd who is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations.

13. The Tribunal is also satisfied from the available evidence before it that the applicant is identified in the nomination as a Subclass 457 visa holder.  Therefore, from all the above, cl.186.223(1) is met.  

14. The oral evidence before the Tribunal from the applicant and the nominator is that the position has not subsequently been withdrawn and is still available to the applicant, and the Tribunal so finds for the purposes of cl.186.223(3) and cl.186.223(4).

15. On 4 June 2020 the Tribunal decided to set aside the nomination refusal decision under review and substituted a decision approving the nomination in the related AAT casefile 1719929 for the reasons set out in the Statement of Decision and Reasons of that date.

16. As the nomination is now approved, the applicant satisfies cl.186.223(2).

17. Given the nomination was approved on 4 June 2020, the Tribunal is satisfied that the application for the visas of 29 June 2017 was made no more than six months after the nomination of the position was approved and the applicant thus, satisfies cl.186.223(5).

18. The Tribunal considered whether for the purposes of cl.186.223(3A), there is any adverse information known by the Department, 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 if it is reasonable to disregard any such information.

19. The nominating employer provided evidence including a statement to the Tribunal advising that there is no such adverse information known and that the employer has com plied with all laws of the Commonwealth and the State. The submission is that in this regard, r.5.19(3)(g)(i) is met and r.5.19(3)(g)(ii) can be disregarded as it does not apply. 

20. At the hearing, Mr Khot on behalf of the employer, Shine Excellence Pty Ltd, responded in the negative when asked if, as a Director he has been declared bankrupt in the past or had been issued any substantial penalties in relation to business operations. There is nothing before the Tribunal to suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator (as defined). The applicants are not aware of any such adverse information.  In the absence of such knowledge or adverse information apparent from the questions relating to this criterion put to the employer and the applicants at the hearing, the Tribunal accepts that the applicant meets this criterion. 

21. Accordingly, cl.186.223(3A) is also met.

22. Therefore, cl.186.223 is met overall.

23. Given these findings, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for the Subclass 186 visas in respect of all applicants including the second named applicant, as a claimed member (spouse) of the same family unit as the applicant.

    DECISION

24. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of all applicants, 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.

    Stavros Georgiadis
    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.