Dhaliwal (Migration)

[2020] AATA 3240

Dhaliwal (Migration) [2020] AATA 3240 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amanpreet Kaur Dhaliwal
Mr Sukjheet Singh
Master Amrinder Singh  

CASE NUMBER:  1812641

HOME AFFAIRS REFERENCE(S):          BCC2016/4242607

MEMBER:Amanda Ducrou

DATE:15 June 2020

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 15 June 2020 at 11:53pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Pastrycook –nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 375
Migration Regulations 1994, r 1.13, 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 16 April 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 15 December 2016. 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 Pastrycook (ANZSCO 351112).

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 16 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ahmed Haouchar representing the nominator. An interpreter in the Punjabi language assisted the Tribunal at the hearing. The applicant’s registered migration agent, Mr Jujhar Bajwa, represented the applicant in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Non-disclosure certificate pursuant to s. 375A of the Act

9. At the hearing the Tribunal informed Mrs Dhaliwal that the Tribunal was in possession of a certificate regarding the disclosure of information given under s.375A of the Act. The certificate advised that disclosure of certain information in the Department’s file otherwise than to the Administrative Appeals Tribunal would be contrary to the public interest because it “contains information … regarding risk profile recorded on 23/02/2018”.

10. The Tribunal told Mrs Dhaliwal that the information in relation to which the certificate was given was a file note regarding the Department’s processing of applications that had no bearing on and was not relevant to the Tribunal’s review of the decision under review. Therefore, the Tribunal disregarded the certificate and the Tribunal determined that no weight should be given the information in relation to which the certificate has been given in making its decision. The Tribunal considers that it is not necessary to invite the applicant to comment or respond to the validity or invalidity of the certificate and to the information referred to in the certificate pursuant to s.359A or s.359AA of the Act.

    Nomination of a position

11. 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.

12. 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.

13. The applicant applied for the visa on the basis of the nomination made by Investor Focus Pty Ltd on 8 December 2016 for the position of Pastrycook (ANZSCO 351112). On 5 March 2018 a delegate of the Department decided to refuse to approve the nomination. Investor Focus Pty Ltd applied to the Tribunal for review of that decision.

14. On 12 June 2020 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.

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

16. Therefore, cl.186.223 is met.

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

18. The second named applicant and the third named applicant made a visa application 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 application on the basis that the requirements in cl.186.311 were not met.

19. 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 applicant and the third named 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

20. 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.