Nand (Migration)

[2021] AATA 145

Nand (Migration) [2021] AATA 145 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shalvindra Nand
Mrs Artika Archana Karan
Miss Arshika Priyanshi Nand

CASE NUMBER:  1802657

HOME AFFAIRS REFERENCE(S):          BCC2017/2339026

MEMBER:Stavros Georgiadis

DATE:11 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of all applicants, 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.

Statement made on 11 January 2021 at 3:47pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Panel-beater – subject of an approved nomination – decision under review remitted

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

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 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 30 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 Panel-beater (ANZSCO 324111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations as at the time of the decision, the appointment to which the visa application relates had not been approved (cl.186.223(2)). As a result, the second and third named applicants, as a member of the applicant’s family unit (claimed as his spouse and child) were also not approved as the delegate considered they could not satisfy the criteria under cl.186.311, or other streams.

6. The first and second named applicants appeared before the Tribunal on 3 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kumar Rakesh who is the sponsor employer for the nominated position in the related AAT casefile 1800015 refusing the nomination. The related matters were heard together in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone conference having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the visa applicants meet the criteria for grant of the Employer Nomination (Permanent) (Class EN) Subclass 186 visas.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal notes from the Department file that the required declaration in paragraph 1114B(3)(d) of Schedule 1 has been made in relation to the position nominated by the nominator employer. The Tribunal is satisfied on the documentary and oral evidence before it that the position to which the application relates is that of Panel-beater (ANZSCO 324111) and that the position was nominated by Rakesh Kumar who is the applicant sponsor employer for approval of a nominated position under r.5.19(3) of the Regulations.

14. The Tribunal is also satisfied from the available evidence before it that the applicant is identified in the nomination as a Subclass 457 visa holder.  Therefore, from all the above, cl.186.223(1) is met.  

15. The oral evidence before the Tribunal from the applicant and the nominator is that the position has not subsequently been withdrawn and is still available to the applicant, and the Tribunal so finds for the purposes of cl.186.223(3) and cl.186.223(4).

16. On 11 January 2021 the Tribunal decided to set aside the nomination refusal decision under review and substituted a decision approving the nomination in the related AAT casefile 1800015 for the reasons set out in the Statement of Decision and Reasons of that date.

17. As the nomination is now approved, the applicant satisfies cl.186.223(2).

18. Given the nomination was approved on 11 January 2021, the Tribunal is satisfied that the application for the visas of 30 June 2017 was made not more than six months after the nomination of the position was approved and the applicant thus, satisfies cl.186.223(5).

19. The Tribunal considered whether for the purposes of cl.186.223(3A), there is any adverse information known by the Department, 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 if it is reasonable to disregard any such information.

20. The nominating employer provided written and oral submissions to the Tribunal advising that there is no such adverse information known and that the employer has complied with all laws of the Commonwealth and the State. The submission is that in this regard, r.5.19(3)(g)(i) is met.  The Tribunal has found, as set out in the decision of even date in the related AAT casefile 1800015, that no such adverse information is known.  It remains that there is nothing before the Tribunal to suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator (as defined in r.1.13A and r.1.13B). The applicants are not aware of any such adverse information.  In the absence of knowledge of adverse information by the Department, the Tribunal accepts that the applicant meets this criterion. 

21. Accordingly, cl.186.223(3A) is also met.

22. Therefore, cl.186.223 is met overall.

23. Given these findings, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for the Subclass 186 visas in respect of all applicants including the second named and third named applicants, as a claimed members (spouse and child) of the same family unit as the applicant.

    DECISION

24. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration in respect of all applicants, 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.

    Stavros Georgiadis
    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.