Bogahapitiye Lekamalage (Migration)

[2019] AATA 6669

Bogahapitiye Lekamalage (Migration) [2019] AATA 6669 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Asanka Dharmaratna Bogahapitiye Lekamalage
Ms Roshani Anandika Botheju Welanthanthrige
Mr Mihin Dulwan Dharmaratna

CASE NUMBER:  1723295

HOME AFFAIRS REFERENCE(S):          BCC2017/806551

MEMBER:Amanda Ducrou

DATE:01 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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 01 November 2019 at 5:13pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Automotive Electrician – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 27 July 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 1 March 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 Automotive Electrician (ANZSCO 321111).

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 there was no approved nomination.

6. The applicant appeared before the Tribunal on 10 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nandi Seelanatha representing the nominator.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Milinda Balasuriya.

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 186.223 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 of the Regulations) 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 applied for the visa on the basis of the nomination made by Mr Nandi Seelanatha on 28 February 2017 for the position of Automotive Electrician (ANZSCO 321111). On 27 July 2017 a delegate of the Department decided to refuse to approve the nomination. Mr Nandi Seelanatha applied to the Tribunal for review of that decision.

13. On 1 November 2019 the Tribunal decided to set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant, who was the holder of a Subclass 457 at the time when the nomination application was made, under r.5.19(3) of the Regulations.

14. As the relevant nomination in respect of the applicant has been approved, the applicant meets the requirements in cl.186.223(2).

15. Therefore, cl.186.223 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 second named visa applicant and the third named visa applicant made applications on the basis of being a member of the family unit of the applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The delegate decided to refuse the applications on the basis that the requirements in cl.186.311 were not met.

18. As the applicant does not hold a Subclass 186 visa at the time of the Tribunal’s decision, the Tribunal is  not able to make a direction that the second named visa applicant and the third named visa applicant meet the requirements in cl.186.311. However, the Tribunal refers the applications made by those applicants to the Department to consider the applications afresh.

    DECISION

19. The Tribunal remits the applications 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.

    Amanda Ducrou
    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.