Maliya (Migration)

[2021] AATA 3003

Maliya (Migration) [2021] AATA 3003 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kulvinder Maliya
Mrs Saravjeet Maliya
Miss Jasmine Maliya
Mr Vanshdeep Maliya

CASE NUMBER:  1907547

HOME AFFAIRS REFERENCE(S):          BCC2016/3455249

MEMBER:Sheridan Lee

DATE:29 July 2021

PLACE OF DECISION:  Melbourne

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 requirements of cl 186.223 of Schedule 2 of the Migration Regulations 1994.

Statement made on 29 July 2021 at 4:08 pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Restaurant Manager – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 12 March 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 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 (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 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 the Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination application made by the applicant’s employer, LVR Management Pty Ltd, was refused by a delegate of the Minister for Immigration.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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 reg 1.13A and reg 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.

10. The nomination application lodged by LVR Management was originally refused by a delegate of the Minister on 8 January 2019. However, on 28 July 2021 the Tribunal set aside the delegate’s decision and substituted it with a decision approving the nomination.

11. Having reviewed the current visa application and the nomination application submitted by LVR Management, the Tribunal is satisfied that:

    ·The nomination made by LVR Management has been approved and has not subsequently been withdrawn

    ·there is no adverse information located on either the Department or Tribunal records

    ·the position is still available to the applicant

    ·the visa application was made the day after the nomination application, and therefore no more than six months after the nomination of the position was approved.

12. Therefore, cl 186.223 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

13. As the second, third and fourth named applicants applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

14. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the requirements of cl 186.223 of Schedule 2 to the Migration Regulations 1994.

    Sheridan Lee
    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.