MANANDHAR (Migration)

[2021] AATA 5503

MANANDHAR (Migration) [2021] AATA 5503 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaurav MANANDHAR
Mrs Ranjana SHRESTHA MANANDHAR

CASE NUMBER:  1814868

DIBP REFERENCE(S):  BCC2017/2727969

MEMBER:Mark O'Loughlin

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 May 2021 at 11:38 am (SA time)

DATE OF WRITTEN RECORD:                29 June 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions under review.

Statement made on 29 June 2021 at 2:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – restaurant or café manager – subject of approved position nomination – refusal of related position nomination affirmed on review – preference to remain in Australia and compassionate considerations – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 May 2018 to refuse to grant the visa applicants  Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. At the hearing on Monday 24 May 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF REASONS

3. This is an application for review of a decision made by the Delegate of the Minister for Home Affairs to refuse to grant the applicants Employer Nomination Permanent Class EN Visas, under section 65 of the Migration Act 1958, which I will refer to as “the Act”.

4. The applicants applied for the visas on 1 August 2017.  At the time of the application Class EN contained one subclass, which was subclass 186, the Employer Nomination Scheme.

5. The criteria for the grant of a Subclass 186 visa is set out in part 186 of schedule 2 to the Migration Regulations of 1994. The primary criteria have to be satisfied by at least one applicant and other members of the family unit, who are applicants for the visa, need satisfy the secondary criteria.

6. Applicants seeking to satisfy the primary criteria must meet the common criteria as well as the criteria of one of three alternative visa streams, including the Temporary Residence Transition Stream.  Applicants seeking to satisfy the secondary criteria must, relevantly, satisfy criterion 186.311, which requires that such applicant is a member of a 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 a visa.

7. In the present case, the first-named applicant, who I will refer to as the applicant, is seeking the visa in the Temporary ResidenceTransition Scheme, to work in a nominated position of restaurant or café manager. The Delegate refused to grant the visas because the applicant did not meet clause 186.223 of schedule 2 to the Regulations, because the Minister did not approve the nomination of the applicant’s position.

8. The applicant appeared before the tribunal on 24 May 2021 to give evidence and present argument.  The applicants were represented in relation to the review by their registered migration agent.  For the following reasons, the tribunal has concluded that the decision under review should be affirmed. 

9. Subclause (2) of clause 186.223 is applicable in this case and relevantly requires that the position to which the application relates is the subject of a nomination which has been approved. 

10. The applicants were invited by the registry of the tribunal to comment or respond to information.  The information was explained to be information which would be the reason, or part of the reason, for affirming the decisions under review.  That information was that the application for approval of the nominated position at Kathmandu Delicious Pty Ltd had been refused and that, on review, the AAT had affirmed that decision to refuse the application for approval of the nomination.

11. The applicant replied within time, indicating a strong preference to remain in Australia and cited a range of compassionate considerations.  The applicant did not dispute that the relevant nomination had not been approved. 

12. The tribunal finds that the applicant does not meet clause 186.223(2) and therefore does not meet clause 186.223. 

13. The applicant has only sought to satisfy the criteria for a subclass 186 visa, in the Temporary Residence Transition Stream.  

14. No claims have been made in respect of the other visa streams and the requirements that must be met by a person seeking a visa in the Temporary Residence Transition Stream have not been met.  The decision under review in relation to the applicant must be affirmed.  That being the case, the secondary applicant does not meet clause 186.311.  The decision in relation to the secondary applicant must be affirmed.

15. The tribunal’s decision is that the tribunal affirms the decision not to grant the applicants Employer Nomination Permanent Class EN visas. 

    DECISION

16. The Tribunal affirms the decisions under review.

    Mark O'Loughlin
    Member