Jasvir Singh (Migration)

[2020] AATA 1293

Jasvir Singh (Migration) [2020] AATA 1293 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Jasvir Singh
Ms Amandeep Kaur

CASE NUMBER:  1716591

HOME AFFAIRS REFERENCE(S):          BCC2016/3685856

MEMBER:Phoebe Dunn

DATE:29 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.186.233(3) of Schedule 2 to the Regulations.

Statement made on 29 April 2020 at 10:11am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Cook – 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 Immigration and Border Protection on 17 July 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 4 November 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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the related nomination application by Delta Hospitality Group Pty Ltd, being the nomination referred to in cl.186.233(1) (the nomination), was refused by a delegate of the Minister on 2 June 2017, and as such there was no approved nomination.

6. The applicants appeared before the Tribunal by telephone on 2 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bhupinder Singh Brar, representing the nominating business, in relation to the review of the decision to refuse the nomination application, which was heard at the same time. 

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant and the nominator both consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent, Mrs Sandra Michelle Bolton.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

11. At the hearing, the applicant gave extensive oral evidence about his role with the nominating business  and the background to the review application.  The applicant described how he applied for employment with the nominating business, after his former employer came into financial difficulties and was not able to retain him.  The applicant stated that he moved to Pemberton to work in one of the nominator’s businesses before moving back to metropolitan Perth to work in another of the nominator’s restaurants at the nominator’s request.  The applicant’s account of the nature of the business, the history of his employment with the nominator and his description of his roles and duties accorded with the evidence given by the representative of the nominator.

    Nomination of a position

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination;

    ·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 of the Regulations); 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.

14. The applicant applied for the visa on the basis of the nomination made by the nominator, Delta Hospitality Group Pty Ltd, on 4 November 2016, for approval of the position of Cook (ANZSCO 351411). The nomination identified the applicant as the relevant Subclass 457 visa holder in respect of which the relevant declaration was made. The nomination was refused by the Department on 2 June 2017.

15. The nominator applied for a review of that decision. On 27 April 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

16. As the relevant nomination in respect of the visa applicant has been approved, the applicant meets the requirements of cl.186.223(2).

17. Therefore, cl.186.233 is met.

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

19. The Tribunal is unable to make a direction that the second named applicant meets this criterion, because at the time of the Tribunal’s decision, the first named applicant did not hold a Subclass 186 visa.  The Tribunal refers the case of the second named applicant to the Department to consider the application afresh.

    DECISION

20. 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.186.233(3) of Schedule 2 to the Regulations.

    Phoebe Dunn
    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.