Khadgi (Migration)

[2023] AATA 1748

Khadgi (Migration) [2023] AATA 1748 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prachandra Khadgi
Mrs Moni Khadgi
Ms Evanna Khadgi

CASE NUMBER:  2000519

HOME AFFAIRS REFERENCE(S):          BCC2019/5371474

MEMBER:Katie Malyon

DATE:11 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

·cl 186.233(3) of Schedule 2 to the Regulations.

Statement made on 11 May 2023 at 12:12 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Painting Trades Worker – subject of an approved nomination – 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 2 January 2020 to refuse to grant the applicants Employer Nomination (Permanent) Subclass 186 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants - Nepalese nationals Prachandra Khadgi, Moni Khadgi and Evanna Khadgi -
   applied for the visa on 25 October 2019.

3. Criteria for a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In this case, Mr Khadgi is seeking the visa in the Direct Entry stream to continue working in the nominated occupation of Painting Trades Worker ANZSCO 332211 with his nominating employer BPaint Pty Ltd T/A Wilko Painting ABN 89 606 941 271 (the Company). The delegate refused to grant the visas on the basis that Mr Khadgi did not meet cl 186.233(3) of Schedule 2 of the Regulations because the Company’s nomination was refused on 22 November 2019.

5. On 11 May 2023, the Tribunal approved the nomination made by the Company for the position of Painter Trades Worker in respect of Mr Khadgi under reg 5.19(4) of the Regulations. Accordingly, cl 186.233(3) of Schedule 2 to the regulations is now met.

6. Given this finding, the appropriate course is to remit Mr Khadgi’s Subclass 186 visa application to the Department to enable consideration of the remaining criteria for grant of the visa.

7. The secondary applicants applied for their visas on the basis of being a member of the family unit of Mr Khadgi: Moni Khadgi is Mr Khadgi’s wife and Evanna Khadgi is the couple’s daughter.  Accordingly, their application will be determined by reference to the outcome of Mr Khadgi’s application on remittal to the Department for reconsideration.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 visa:

   ·cl 186.233(3) of Schedule 2 to the Regulations.

   Katie Malyon

   
   Member