NIRANJAN SINGH (Migration)

[2018] AATA 2199

NIRANJAN SINGH (Migration) [2018] AATA 2199 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms PRABHDEEP KAUR NIRANJAN SINGH
Mr NIRANJAN SINGH KHEHRA

CASE NUMBER:  1718518

DIBP REFERENCE(S):  BCC2017/1345546

MEMBER:Mark Bishop

DATE:10 May 2018

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 and second named applicants respectively meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 10 May 2018 at 1:17pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 186.223(3), 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 11 August 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 11 April 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 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 Café or Restaurant Manager (ANZSCO: 141111).This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on 28 June 2017 the nomination lodged by Gowanbrae Foods Pty Ltd, being the nomination referred to in 186.223(1), was refused by a delegate of the Minister.

6. The matter was resolved on the papers.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. On 10 May 2018, the Tribunal approved the nomination of Prabhdeep Kaur NIRANJAH SINGH under r.5.19(4) of the Regulations made by her employer Gowanbrae Foods Pty Ltd. The relevant case number is 1714230. Accordingly, Ms Prabhdeep Kaur NIRANJAN SINGH now meets cl.186.233(3) of Schedule 2 to the Regulations.

   Secondary applicant Niranjan Singh KHEHRA

10. The secondary applicant Niranjan Singh KHEHRA is a member of the family unit of the primary applicant Prabhdeep Kaur NIRANJAH SINGH. The primary applicant has now satisfied cl.186.223. Accordingly in respect of the secondary applicant cl.186.311 is satisfied. 

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

    DECISION

    The Tribunal remits the applications for an Employer Nomination (class EN) Employer Nomination (subclass 186) with the direction that the first named applicant and the second named applicant respectively meet the following criteria for a Subclass 186 (Temporary Residence Transition Scheme) visa:

    ·cl.186.233(3) and cl.186.311 of Schedule 2 to the Regulations

    Mark Bishop
    Member