Gill (Migration)

[2020] AATA 1594

Gill (Migration) [2020] AATA 1594 (19 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Komaldeep Kaur Gill
Mr Pardeep Singh Gill
Miss Parinoor Gill

CASE NUMBER:  1724641

HOME AFFAIRS REFERENCE(S):          BCC2017/2320487

MEMBER:Alan McMurran

DATE:19 May 2020

PLACE OF DECISION:  Sydney

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; and

·cl.186.223 of Schedule 2 to the Regulations.

Secondary applicants

The Tribunal remits the applications by the second and third named applicants for reconsideration with the direction that the applications be considered for the remaining criteria.

Statement made on 19 May 2020 at 11:13am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 10 October 2020 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2017 to refuse to grant the applicants, who are citizens of the Republic of India, Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. 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. 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.

4. 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 related nomination by J Brar Pty Ltd[1] was refused by the Minister on 10 August 2017.

   [1] T case file on review 1719735

5. Based on the information now before the Tribunal, the Tribunal can proceed to a decision under section 360 (2) of the Act, which is favourable to the applicants and without a hearing.

6. The applicants were represented in relation to the review by their 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

8. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

9. The tribunal has available for consideration its case file and the Department’s file, together with the information from the related nomination files concerning the nominator, J Brar Pty Ltd.[2]

   [2] Tribunal case file 1719735; Department file BCC 2017/2289704

   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. On the available information, the Tribunal finds that the nomination application[3] has identified the visa applicant, and which nomination application was subject to review by the Tribunal. On 18 May 2020, the Tribunal decided to remit the nomination application to the Department with the direction the nominator met the regulatory requirements.[4] The Tribunal finds therefore that clause 186.223(2) of the Regulations as it applies to the visa applicant, is now met.

    [3] BCC2017/2289704

    [4] cl. 187.223 of Schedule 2 to the Regulations

13. The Tribunal has reviewed the available information and finds the nomination application and the position offered to the applicant has not been subsequently withdrawn.

14. The Tribunal further finds it is not aware there is any adverse information known to Immigration (or the Tribunal) about the person who made the nomination, or any person associated with that person.

15. The information available to the Tribunal discloses that the position of Cook is still available to the applicant at the time of this decision, and that the visa application was made no more than 6 months following the approval of the nomination.

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.

    Secondary Applicants

18. The second and third named applicants are members of the family unit of the primary review applicant. Secondary applicants must be members of the family unit of a person who has satisfied the primary criteria. All criteria must be satisfied at the time a decision is made on the application for the visas.

19. As the Tribunal has found the primary review applicant meets the criteria in clause 186.223 of the Regulations, the appropriate course is to remit the applications by the secondary applicants for further consideration as to the remaining criteria.

    DECISION

20. 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; and

    ·cl.186.223 of Schedule 2 to the Regulations.

    Secondary applicants

    The Tribunal remits the applications by the second and third named applicants for reconsideration with the direction that the applications be considered for the remaining criteria.

    Alan McMurran
    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.