Dhingra (Migration)

[2020] AATA 1338

Dhingra (Migration) [2020] AATA 1338 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ishkaran Dhingra
Ms Sakshi Nagpal

CASE NUMBER:  1800354

HOME AFFAIRS REFERENCE(S):          BCC2017/2128609

MEMBER:Keith Kendall

DATE:30 April 2020

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; and

The Tribunal remits the application Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 30 April 2020 at 4:32pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Real Estate Agent – subject of an approved nomination – 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 15 December 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 16 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 Temporary Residence Transition stream, to work in the nominated position of Real Estate Agent (ANZSCO 612114).

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 applicant was not the subject of a nomination application which the Minister had approved.

6. The applicant appeared before the Tribunal on 30 January 2020 in the related nomination case (Case Number 1730196) to give evidence and present arguments.

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 meets the requirements of cl.186.223(2) of Schedule 2 to the Regulations and is the subject of a nomination application that has been approved by the Minister.

   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. Following the hearing on 30 January 2020 in respect of the related nomination application, the Tribunal set aside the primary decision on 30 April 2020, substituting a decision approving the nomination.

13. The Tribunal, therefore, finds that the applicant meets the criterion in cl.186.223(2).

14. In addition, having regard to the information obtained at the hearing and having carefully reviewed the Tribunal file and the file of the Department of Immigration and Border Protection, the Tribunal is satisfied that:

    ·The nomination has been approved and has not been subsequently withdrawn;

    ·There is no adverse information known about the applicant or any person associated with the applicant;

    ·The nominator has provided evidence that the position of Real Estate Agent has been occupied by the applicant on a full time basis since 9 December 2014 (excluding a period of unpaid leave). The Tribunal has been provided with evidence that the applicant continues in that employment and that the written contract of employment does not preclude the possibility of an extension; and

    ·The visa application was made by the applicant no more than six months following the nomination of the position, which nomination was approved by the Tribunal on 30 April 2020.

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.

    Secondary applicant

17. The Tribunal finds that the second named applicant is a member of the family unit of the applicant, who is an applicant for a Subclass 186 visa and who satisfies the primary criteria for the grant of the visa.

18. The Tribunal is further satisfied that the second named applicant made a combined application with the applicant.

19. As a result, the Tribunal is satisfied that cl.186.311 has been satisfied in respect of the second named applicant.

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

    DECISION

21. 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; and

    The Tribunal remits the application Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations.

    Keith Kendall
    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.