Dhakal (Migration)

[2021] AATA 2256

Dhakal (Migration) [2021] AATA 2256 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prakash Dhakal (applicant)
Mrs Akriti Adhikari Dhakal (second applicant)

CASE NUMBER:  1828064

HOME AFFAIRS REFERENCE(S):          BCC2017/4808483

MEMBER:Jane Bell

DATE:15 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 186.223 of Schedule 2 to the Regulations.

Statement made on 15 June 2021 at 4:24pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 13 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 15 December 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 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 because the delegate was not satisfied that the applicant had an approved nomination for a position with his employer, which had not ceased. The delegate also refused to grant a Subclass 186 visa 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 the applicant met the primary visa criteria in her own right.

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 applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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 the applicant has an approved nomination for a position with his employer, which has not ceased.

   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 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. It is not disputed that the applicant’s employer did not have an approved nomination in respect of the applicant at the time of the Department’s decision.

13. However, the Tribunal is satisfied that the employer lodged a review application with the Tribunal in relation to the refusal of its nomination of the applicant for the position of Cook (ANZSCO 351411). On 15 June 2021, the Tribunal set aside the Department’s refusal decision and substituted a decision approving the nomination application by the nominator in the Temporary Residence Transition stream that identifies the applicant and the position of Cook for the applicant.

14. Accordingly, the Tribunal is satisfied on the basis of the evidence before it that:

    ·the position of Cook (ANZSCO 351411) 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 applicant as the holder of a Subclass 457 visa;

    ·the position of Cook (ANZSCO 351411) was the one that was the subject of the declaration that was required to be made as part of the current visa application;

    ·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) based on a review of the Department’s records;

    ·the position is still available to the applicant based on: evidence from the applicant’s employer and the Employment Agreement between the applicant and his employer, dated 9 March 2021 to work in the nominated position as a paid employee; the Organisational Chart which confirms that the position description continues to fit into the business activity; the applicant’s Position Description; and the applicant’s recent  PAYG Payment Summaries, applicant’s 2020 ATO Notice of Assessment and 2021 ATO Business Activity Statements; and

    ·the visa application was made no more than six months after the nomination of the position was approved.

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 delegate made a decision that the second named applicant did not satisfy cl.186.311, which requires that she is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a combined application with the primary applicant.

18. The Tribunal notes that the second named applicant’s application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration. 

    DECISION

19. 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.

    Jane Bell
    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.