Lal (Migration)

[2019] AATA 4702

Lal (Migration) [2019] AATA 4702 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ravinesh Royhit Lal
Mrs Shawna Lynne Lal
Miss Jaiden Surita Lal

CASE NUMBER:  1723810

HOME AFFAIRS REFERENCE(S):           BCC2017/2287887

MEMBERS:Andrew McLean Williams (Presiding)

Susan Trotter

DATE:5 July 2019

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.186.233 of Schedule 2 to the Regulations.

Statement made on 05 July 2019 at 4:50pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – employer’s nomination application refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 5.19(4)(h)(i), Schedule 2, cls 186.233, 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 Immigration and Border Protection on 29 September 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 28 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 primary applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Business Analyst (ANZSCO Category 261111), employed by Lindsay Rural Pty Ltd.

5. The delegate refused to grant the visas because the primary applicant did not meet cl.186.233 of Schedule 2 to the Regulations, because the required nomination linked to the visa application had been refused.

6. Mr and Mrs Lal appeared before the Tribunal on 23 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sean Banfield who is the Chief Information Officer for Mr Lal’s sponsoring employer Lindsay Rural Pty Ltd, and from Ms Melissa Strong, who is Lindsay Rural Pty Ltd’s Manager of Safety, People and Culture. 

7. The applicants were represented in relation to the review by their registered migration agent, Mr Peter Bollard of Lewis & Bollard. Just prior to the commencement of the hearing, Mr Bollard contacted the Tribunal to inform that he had succumbed to an illness, such that he requested that the hearing be postponed. Yet, by that stage the applicants and the other witnesses as have been named above had already arrived at the Tribunal premises. At the request of the applicants, the hearing continued, notwithstanding the unforeseen unavailability of Mr Bollard.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary applicant satisfies the requirements of cl.186.233. In related Tribunal file 1721771, also heard by the Tribunal on 23 May 2019, the Tribunal determined that Lindsay Rural Pty Ltd had established that it has a genuine need to sponsor the primary applicant in the nominated position and satisfied the Tribunal that it met the other requirements for the nomination to be approved resulting in the Tribunal deciding to approve the nomination. That outcome has a material bearing on the determination of this case.

   Nomination of a position

10. Clause 186.233 is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. Furthermore, this criterion requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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. In this case, the position to which the application relates is the position nominated in an application for approval that meets the requirements of r.5.19(4)(h)(i), the position is one that was the subject of a declaration made as part of the current visa application, and the primary applicant has been identified as the person who will fulfil the position. The nomination has now been approved (refer to Tribunal file 1721771 decision) and has not been subsequently withdrawn. Lindsay Rural Pty Ltd made the nomination application and now employs Mr Lal. Mr Sean Banfield has informed the Tribunal that Mr Lal’s position at Lindsay Rural will remain available to him well into the foreseeable future. The visa application was made no more than six months after the nomination of the position was approved. No ‘adverse information’ known to Immigration about the primary applicant or persons associated with the primary applicant has been drawn to the attention of the Tribunal.

13. Therefore, in the case of the primary applicant, cl.186.233 is met. 

14. Mrs Shawna Lynne Lal and Miss Jaiden Surita Lal are family members of the primary applicant who need to satisfy the requirements of cl.186.311. Their applications will now be determined by reference to the outcome of the primary applicant’s application on remittal to the Department of Immigration and Border Protection for reconsideration.

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

    DECISION

16. 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.186.233 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    Member

    Susan Trotter
    Member

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (4A)   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.

    (5)    The position is still available to the applicant.

    (6)    The application for the visa is made not more than 6 months after the Minister approved the nomination.