KOCHHAR (Migration)

[2020] AATA 4038

KOCHHAR (Migration) [2020] AATA 4038 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Swinky KOCHHAR
Mr Naman KOCHHAR

CASE NUMBER:  1800886

HOME AFFAIRS REFERENCE(S):          BCC2017/2273494

MEMBER:De-Anne Kelly

DATE:2 September 2020

PLACE OF DECISION:  Brisbane

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; and

Statement made on 02 September 2020 at 9:45am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Early Childhood Teacher –tribunal set aside nomination decision–nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 8 January 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 27 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Early Childhood Teacher.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because

6. The applicant appeared before the Tribunal on 4 August 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

7. The applicant was represented in relation to the review by its registered migration agent, Dr Etienne De Villers Hugo MARN: 0004435 of Teleo Immigration Specialists of Baulkham Hills, NSW 2113.

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 applicant satisfies cl.186.223(2) which provides as follows;

   (2)      The Minister has approved the nomination.

   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. The visa application was acknowledged by the Department of Immigration and Border Protection on 27 June 2017 and is consistent with the declaration in cl.1114B(3)(d) of Schedule 1 to the Regulations being made in the application for the grant of the visa.

13. Mr Hoomayan Kermani of Tirandaz & Hoomayun Kermani, partnership trading as Heritage House Childcare & Early Learning Centres made the nomination and signed the Employment Contract demonstrating that he is the person who will employ the applicant and is the person who made the nomination. The application made was for the approval of the position of Early Learning Teacher.

14. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision. The Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant. The nomination has therefore been approved and has not been withdrawn by Mr Hoomayan Kermani of Tirandaz & Hoomayun Kermani, partnership trading as Heritage House Childcare & Early Learning Centres.

15. There is no information before the Tribunal constituting adverse information regarding the company or its director. There is no evidence before the Tribunal that the Department had adverse information regarding Mr Hoomayan Kermani of Tirandaz & Hoomayun Kermani, partnership trading as Heritage House Childcare & Early Learning Centres being the person who made the nomination, or their associates.

16. The most recent addendum to the employment contract dated 10 April 2019 and signed by the nominator and the employment contract dated 27 June 2014, signed by both the nominee and the nominator demonstrate that the position is still available to the applicant. The visa application was made on 27 June 2017 and therefore was made no more than six months after the nomination of the position was approved.

17. Therefore, cl.186.223 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 secondary visa applicant Mr Naman KOCHHAR had his visa application refused by a delegate of the Minister on the basis that cl.186.311 of Schedule 2 to the Regulations was not satisfied. This clause provides that:

    186.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and
    (b) made a combined application with the primary applicant.

20. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicant was a member of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

21. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants’ visa applications to the Minister.

    DECISION

22. 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 of Schedule 2 to the Regulations; and

    De-Anne Kelly
    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.