Kaur (Migration)

[2021] AATA 423

Kaur (Migration) [2021] AATA 423 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jatinder Kaur
Mr Naib Singh
Mr Kulyodh Singh Dhaliwal

CASE NUMBER:  1815430

HOME AFFAIRS REFERENCE(S):          BCC2017/2076336

MEMBER:Amanda Mendes Da Costa

DATE:16 February 2021

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.186.223 of Schedule 2 to the Regulations.

The Tribunal considers that the applications of the second and third named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

Statement made on 16 February 2021 at 1.06pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 Home Affairs on 23 May 2018 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 12 June 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 is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Hairdresser.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the first named applicant’s favour on the basis of the material before it.  It was therefore unnecessary to invite the first named applicant to appear before it to give evidence in relation to the decision under review.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the first named applicant meets the requirements of cl.186.223.

   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 15 February 2021 the Tribunal set aside the decision of the Department to refuse the nomination for the occupation of ‘Hairdresser’ lodged by Rosa’s Hair and Beauty Salon in respect of the first named applicant and substituted a decision that the nomination is approved.

13. The Tribunal is further satisfied 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 first named applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

14. Therefore, at the time of decision, there is an approved nomination in respect of the first named applicant and for these reasons the requirements of cl.186.223 is met.

15. As the Tribunal has found that the first named applicant satisfies the primary criteria for the grant of a Subclass 186 visa, it considers that the applications of the second and third  named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

16. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visas.

    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.186.223.

    The Tribunal considers that the applications of the second and third named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    Amanda Mendes Da Costa
    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.