GHORI (Migration)

[2020] AATA 2542

GHORI (Migration) [2020] AATA 2542 (22 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vipul Chhaganbhai GHORI
Mrs Jankibahen Vipul GHORI
Miss SIYA VIPUL GHORI

CASE NUMBER:  1731254

HOME AFFAIRS REFERENCE(S):          BCC2017/1920205

MEMBER:Mr S Norman

DATE:22 May 2020

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations

Statement made on 22 May 2020 at 3:36pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class RN) visa – Subclass 186 (Employer Nomination Scheme) – related position nomination refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223

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 1 December 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 30 May 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 Print Finisher (ANZSCO: 392111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

6. The applicant/nominee (Mr Vipul Chhaganbhai GHORI) appeared before the Tribunal on 18 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator (represented by Mr Wayne RUBIN). The applicant was represented in relation to the review by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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. 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.

9. On 25 October 2017, the nomination application lodged by Twin Loop Binding Pty Ltd, being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister. On the same day, the applicant was issued an invitation to comment about this information and options were provided. The applicant was given 28 days within which to respond in writing. As at the time and date of the Department decision, no response had been received. Accordingly, the delegate was not satisfied the applicant met cl.186.223(2); or cl.186.223.

10. The delegate also considered cl.186.311 (membership of the family unit). However, as none of the applicant’s met the primary criteria for the grant of the visa, none were entitled to the visa based on their membership of the family unit of a person who had.  

11. After finding the applicant had not met the criteria under the alternate streams, the delegate refused to grant the applicants the Employer Nomination Scheme (Subclass 186) visa.

12. By letter dated 29 January 2020 to the Tribunal, the applicant advised that he had purchased a property “off the plan” in Parramatta. And that the total value of the property was $820,000 plus $32,410; and that he had already paid 10% of the total value as a deposit plus stamp duty (being 82,000+32,410 = $114,410[1]).

    [1] Tribunal – folio 83.

13. By letter of 1 April 2020, the applicant referred to the substantial period of time that had elapsed since they had lodged the merits review application, the significant stress this had caused; that he had purchased an off the plan unit and due to payment obligations for same, unless he could secure a loan (something he said he was refused due to not being an Australian permeant resident or valid Subclass 457 visa holder), he would forfeit his deposit. It was also claimed the applicant’s daughter wanted to attend inter alia pre-school but that the applicant is ‘not able to afford’ to send his daughter every day. The applicant then said he had resided in Australia for 11 years and would (words to the effect) contribute to the country.

14. By Tribunal decision of 22 May 2020, the Tribunal approved the nomination of the applicant’s nominator (TWIN LOOP BINDING PTY LIMITED – AAT # 1727844). Therefore, cl.186.223(2) is met.

15. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

16. 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(2) of Schedule 2 to the Regulations

    Mr S Norman
    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.