MARWAH (Migration)

[2019] AATA 4265

MARWAH (Migration) [2019] AATA 4265 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr AMAN MARWAH
Mrs AMANDEEP BEDI

CASE NUMBER:  1618933

HOME AFFAIRS REFERENCE(S):           BCC2016/911361

MEMBER:Warren Stooke AM

DATE:27 August 2019

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 following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

· cl.186.223 of Schedule 2 to the Regulations; and

The Tribunal remits the application in respect of the secondary applicant for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

· cl.186.311 of Schedule 2 to the Regulations

Statement made on 27 August 2019 at 11.49pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Graphic Pre-press Worker –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, 186.242, 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 26 October 2016 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 5 March 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 (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 Graphic Pre-press Worker (ANZSCO code 392211).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations given that the applicant did not have an approved standard business sponsor.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing. The Tribunal also received oral evidence from the Manager of Indsoft Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Graphic Pre-press Worker (ANZSCO code 392211).

   Nomination of a position

9. 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.

10. 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.

11. The nominating sponsor provided evidence that the sponsored position of Graphic Pre-press Trades Worker included the following tasks:

    a.using computer applications to generate images, text, layouts and impositions for print and other visual media displays;

    b.operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions

    c.evaluating printed proofs, checking and correcting them for quality.

12. The nominating sponsor stated that his business does not use offset printing equipment, but rather computer based software that has displaced the older offset technology. As such, the business does not perform offset printing or use carbon printing, where the modernised process includes the use of toners and ink cartridges.

13. The nominating sponsor stated that the business undertakes work in both the retail and commercial industrial sectors and that the work description, as work performed by the business, included the printing of business cards; flyers; posters; and general signage.

14. The nominating sponsor stated that the business operates out of a factory complex in Springvale and has sophisticated equipment that includes a Xerox Digital Colour Machine; a Roller Signage printer and folder binding and laminating machines.

15. The nominating sponsor gave evidence that the award applying to the applicant is the Graphic Arts Modern Award 2010 and that the nominee was provided with an Information Statement at the commencement of employment consistent with the requirements of the Fair Work Act 2009.

16. Further, the nominating sponsor stated that he advertised for the position and that he selected the nominee because all of the other applicants were not experienced and were students.

17. The nominating sponsor stated that the work is procured from the clients and then the scope of the job is provided to the nominee and delivered, which includes making up the work and then printing.

18. The nominating sponsor gave evidence that the nominee has both a Certificate and Diploma in Graphics.

19. The Tribunal was advised by the nominating sponsor that the nominee, who commenced with the business in 2013, works 38 hours per week and receives a current remuneration package of $54,000 per annum, together with a superannuation payment of 9.5%, which is contributed into HostPlus.

20. The applicant stated that he works in the business part-time, usually for 3 days and draws a salary of between $30,000 and $35,000 per annum.

    Evidence of the Applicant

21. The applicant gave evidence that he joined the business after receiving his visa on 6 November 2013 and that his role was as a pre-press operator, engaged in printing, designing, binding, where the clients include the Victorian Institute of Accounting, Real Estate agents and restaurants.

22. The applicant stated that he had been in Australia for a period of 14 years and that he is married.

23. The applicant stated that he uses a Fuji Xerox Colour printer; guillotine machine; a Roller signage printer; a binding machine; and a folding machine.

24. The applicant stated that he has no contact with clients in his role.

    Approval of Nominated Position

25. The Tribunal is satisfied that based upon the oral evidence from both the nominating sponsor and the applicant that the role performed by the nominee is that of a Graphic Pre-press Trades Worker (ANZSCO code 392211). [Tribunal Case Matter 1616266]

26. Accordingly the requirements of r.5.19(4)(h) are met.

27. Based on the findings above, the Tribunal is satisfied that the nominee meets the requirements of r.5.19 for approval of the nominated position in Australia for a Graphic Pre-press Trades Worker (ANZSCO code 392211).

28. Accordingly, the Tribunal is satisfied that cl.186.223, cl.186.233 and cl.186.242 have been met.

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

30. On the basis that the Tribunal is satisfied that the primary applicant has satisfied cl.186.223, the Tribunal is thereby satisfied that the secondary applicant is a member of a family unit that has satisfied the appropriate criteria for a grant of the visa, including cl.186.311.

    DECISION

31. 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

    The Tribunal remits the application in respect of the secondary applicant for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations

    Warren Stooke AM

    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.