Kaur (Migration)

[2019] AATA 2860

Kaur (Migration) [2019] AATA 2860 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ranjit Kaur

CASE NUMBER:  1709782

HOME AFFAIRS REFERENCE(S):           BCC2016/3303135

MEMBER:Jennifer Cripps Watts

DATE:28 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223(2) of Schedule 2 to the Regulations.

Statement made on 28 February 2019 at 3:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – cook – nomination not approved – tribunal approved nomination on review – decision under review remitted

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

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 5 May 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 October 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 applicant is seeking the visa, in Temporary Residence Transition stream, to work in the nominated position of cook for Lovely Indian Sweets Pty Ltd trading as Haveli Indian Restaurant and Sweets.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination relating to the applicant was not approved.

6. The applicant appeared before the Tribunal on 5 October 2018 at a combined hearing with the nominator, Lovely Indian Sweets Pty Ltd (Tribunal matter number 1705782).

7. The applicant was represented in relation to the review by her 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 nomination relating to the applicant has been approved.

   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, among other things but relevantly, that the nomination has been approved and has not been subsequently withdrawn.

12. The applicant applied for the Subclass 186 visa that is the subject of this review on the basis of a nomination made by Lovely Indian Sweets Pty Ltd.  The employer nomination in which the applicant was identified as the relevant Subclass 457 visa holder, and against which she made the relevant declaration at the time of the visa application, was refused by the Department.

13. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination.  On 28 February 2019, the Tribunal set aside the Department’s decision refusing the nomination and substituted a decision approving the nomination.

14. As the relevant nomination in respect of the applicant has been approved, the applicant meets the requirement in cl.186.223(2).

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

    DECISION

16. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223(2) of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    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.