Haque (Migration)

[2018] AATA 5552

Haque (Migration) [2018] AATA 5552 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Razauna Haque
Mr Md Noor Alam
Master Ayaan Alam

CASE NUMBER:  1707107

HOME AFFAIRS REFERENCE(S):           BCC2016/2636564

MEMBER:Alan McMurran

DATE:8 October 2018

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 of Schedule 2 to the Regulations; and

The Tribunal remits the applications in respect of the secondary applicants for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 08 October 2018 at 10:57am

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 29 March 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 9 August 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 Temporary Residence Transition stream, to work in the nominated position of Cook.

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 which the Minister has approved.

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 has met the requirements of the regulation 186.223.

   Nomination of a position

9. 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.

10. 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; and

    ·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.

11. The applicant was nominated in an application made by Krunch & Crunch Catering Pty Ltd,[1] (the nominator) which was refused by the Department in a decision made by the delegate on 17 February 2017.

    [1] T file case number 1704109; DOHA file number BCC2016/2608629

12. The application by the nominator was subject of a review by the Tribunal determined on 5 October 2018.[2] The Tribunal decision set aside the decision to refuse the nomination, substituting a decision approving the nomination.

    [2] Ibid

13. In considering the requirements of the subregulation 186.223 for this review, the Tribunal is satisfied that the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3); and is made in relation to a visa in a Temporary Residence Transition stream; and in relation to which the declaration in paragraph 1114B (3) (d) of Schedule 1 was made in the application for the grant of the visa.

14. The Tribunal finds the requirements of 186.223 (1) are met.

15. The Tribunal finds that the applicant meets the requirement in subregulation 186.223 (2) as the nomination has been approved[3], and has not been withdrawn (186.223 (3)).

    [3] 5 Oct 2018

16. The applicant must also meet the remaining criteria in 186.223 for the application to succeed.

17. On the information before the Tribunal, the Tribunal finds as follows: –

    ·there is no adverse information known to Immigration or before the Tribunal about the person who made the nomination (the nominator) or a person associated with the nominator (186.223 (3A)); and

    ·the position of cook as nominated is still available to the applicant who has been offered a current contract[4] of employment (186.223 (4)); and

    ·the application for the visa is made no more than 6 months after the approval of the nomination(186.223(5));

    [4] Ibid at par 24

18. Therefore, cl.186.223 is met.

19. 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

20. Given the findings above, the Tribunal is satisfied that the secondary applicants are members 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 that the secondary applicants made a combined application with the primary applicant.

21. The requirements of subregulation 186.311 are met.

    DECISION

22. 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 applications in respect of the secondary applicants for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations

    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.