Kaur (Migration)

[2018] AATA 5524

Kaur (Migration) [2018] AATA 5524 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Paramjit Kaur
Mr Mukhtar Singh
Mr Harmohit Singh
Miss Ishreet Kaur

CASE NUMBER:  1701323

HOME AFFAIRS REFERENCE(S):       BCC2016/2318956

MEMBER:Warren Stooke AM

DATE:12 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Employer Nomination (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(2) of Schedule 2 to the Regulations.

Statement made on 12 November 2018 at 5:10pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – hairdresser – nomination approved – previously worked in position – position available for two years – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 245
Migration Regulations 1994, rr 1.13, 1.15, 5.19, Schedule 2, cls 186.212, 186.221, 186.222, 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 Immigration and Border Protection on 24 January 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 11 July 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 Hairdresser – ANZSCO 391111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 16 December 2016, the nomination lodged by U Like Hair & Beauty Pty Ltd was refused by the delegate of the Minister for Immigration and Border Protection. As the appointment was refused, cl.186.223(2) was not met.

6. The applicants appeared before the Tribunal on 19 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Singh, the owner of U Like Hair & Beauty Pty Ltd.

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

8. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant has an approved standard business sponsor and whether the applicant meets the relevant criteria for the grant of a cl.186.223 visa.

2. The applicant arrived in Australia on 2 March 2009 and has formal qualifications commensurate with the requirements of the nominated position, including: Certificates III and IV in Hairdressing and a Diploma in Business Management. For the last 4.5 years, the applicant has been working in the business as a hairdresser, which is the position she has been nominated for engagement.

Employment will be provided

1. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application.

2. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

3. The applicant provided evidence that the nominee will be employed on a full-time basis for a period of at least 2 years from the granting of a visa.

4. The terms and conditions, as set out in the contract of employment and covering letter provide for an unlimited period of employment and do not expressly exclude the extension of employment beyond the commitment to 2 years advised in the hearing. [Tribunal File — Folio 68-70]

5. Therefore, cl.186.212 is met

Whether the applicant has engaged in conduct in contravention of the Act

1. An applicant meets cl.186.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act.

2. Alternatively, where the applicant has engaged in such conduct in the previous 3 years, an applicant may satisfy cl.186.212A(b) if it is reasonable to disregard that conduct.

3. There is no evidence before the Tribunal that the applicant has engaged in conduct that would contravene the provisions of the Migration Act 1958.

4. Therefore, cl.186.212A is met.

Age requirements

1. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements, or be in a class of persons specified in legislative instrument IMMI12/058. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

2. In the present case the applicant was aged 38 years at the time of application.

3. Therefore, cl.186.221 is met.

English language proficiency

1. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 15/005 which requires an IELTS test score of at least 5 in each of the four test components of speaking, reading, writing and listening. In this regard the applicant obtained an overall EILTS test score of 5.5 at a test undertaken on 25 June 2016. [DIBP File – Folio 68]

2. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

   ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

   ·holds a specified passport.

3. Therefore, cl.186.222 is met.

Nomination of a position

1. 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.

2. 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.

3. The Tribunal is satisfied that the nominated position of Hairdresser is listed in the eligible occupations list as ANZSCO —391111 and that the position is available for the nominee.

4. The specifics of the position are as provided hereunder:

   "UNIT GROUP 3911 HAIRDRESSERS

   HAIRDRESSERS cut, style, colour, straighten and permanently wave hair, and treat hair and scalp conditions.

   Indicative Skill Level:

   Most occupations in this unit group have a level of skill commensurate with the qualifications

   and experience outlined below.

   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   In New Zealand:

   NZ Register Level 4 qualification (ANZSCO Skill Level 3)

   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   ·      providing advice on hair care, beauty products and hairstyles

   ·      shampooing hair and conditioning scalps

   ·      colouring, straightening and permanently waving hair with chemical solutions

   ·      cutting hair with scissors, clippers and razors

   ·      styling hair into dreadlocks and braids and adding hair extensions

   ·      shaving and trimming beards and moustaches

   ·      cleaning work areas and sanitising instruments

   ·      arranging appointments and collecting payments

   ·      may clean, colour, cut and style wigs and hairpieces

   Occupation: 391111 HAIRDRESSER

   Cuts, styles, colours, straightens and permanently waves hair, and treats hair and scalp conditions.

   Skill Level: 3"

5. The applicant gave evidence that she has worked in the position for the last four and one half years, which was corroborated by the employer, Mr. Singh.

6. Further, the position will continue to be available for the next two years as provided in evidence by the employer

7. Therefore, cl.186.223(2) is met.

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

9. The applications of the second and third named visa applicants is based on being a member of the family unit of the first named visa applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named visa applicant with a finding that she meets the requirements of cl.186.223(2), the remaining criteria for her application should now be reconsidered, in addition the applications of the second, third and fourth named visa applicants, as members of the family unit of the first named visa applicant, should now also be reconsidered in full.

DECISION

1. The Tribunal remits the applications Employer Nomination (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(2) of Schedule 2 to the Regulations.

Warren Stooke AM

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.

1. The Minister has approved the nomination.

2. 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.

1. The position is still available to the applicant.

2. The application for the visa is made no more than 6 months after the Minister approved the nomination.