Hari (Migration)

[2020] AATA 1222

Hari (Migration) [2020] AATA 1222 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prasad Hari
Mrs Jyothirmai Kammili
Master Ananth Karthikeya Naidu Hari
Ms Aadyasree Naidu Hari

CASE NUMBER:  1800092

HOME AFFAIRS REFERENCE(S):          BCC2017/2193978

MEMBER:Wan Shum

DATE:22 April 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.186.233 of Schedule 2 to the Regulations.

Statement made on 22 April 2020 at 12:30pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Developer Programmer – subject of an approved nomination – nomination approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 Home Affairs on 28 December 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 21 June 2017.

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 Direct Entry stream, to work in the nominated position of Developer Programmer.

5. The applicant was nominated for this position by Softvision Australia Pty Ltd, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was rejected on 16 November 2017.

6. As a consequence, the delegate refused to grant the visas because there was not an approved nomination in respect of the applicant, which meant he did not meet cl.186.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicant has sought review of the refusals. The applicants were represented in relation to the review by a registered migration agent.

8. On 22 April 2020, the Tribunal decided to approve the nomination made by Softvision Australia Pty Ltd and, for the following reasons, has concluded that this matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position to which this application relates was approved under the Direct Entry stream: cl.186.233(3). The position must identify the applicant and be the one that was the subject of the declaration that was required to be made as part of the current visa application: cl.186.233(1).

10. In addition, clause 186.233 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.

11. On the visa application form, the applicant provided details of a related nomination that matched the Transaction Reference Number EGOEVAYJEY of the nomination made by Softvision Australia Pty Ltd for the position of Developer Programmer. The applicant made the necessary declaration which meets the requirements of cl.186.233(1)(b).

12. The relevant nomination sought to meet the requirements of r.5.19(4) and identified the applicant as the 457 visa holder. The Tribunal approved that nomination on 22 April 2020 and it has not been withdrawn.

13. The applicant is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person.  It does not have any information before it indicating that there have been any court/administrative/disciplinary actions or the like in relation to the nominator.

15. Given the above, the Tribunal finds that all of the requirements of cl.186.233 are met.

16. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. 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.186.233 of Schedule 2 to the Regulations.

    Wan Shum
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.