Pandya (Migration)

[2019] AATA 4698

Pandya (Migration) [2019] AATA 4698 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yagneshkumar Rajendrakumar Pandya
Mrs Kavitaben Yagneshkumar Pandya
Mr Divit Yagnesh Pandya

CASE NUMBER:  1712961

HOME AFFAIRS REFERENCE(S):           BCC2015/2593283

MEMBER:Alan McMurran

DATE:11 July 2019

PLACE OF DECISION:  Sydney

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 for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.311 of Schedule 2 to the Regulations.

Statement made on 11 July 2019 at 3:03pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – refusal set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 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 2 June 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 30 September 2015. 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 the Temporary Residence Transition stream, to work in the nominated position of internal auditor ANZSCO 221214.

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 applicant was not the subject of a nomination application which the Minister has approved.

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

8. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.  

   Nomination of a position – Primary Applicant

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. In this review, the Tribunal has had regard to the Tribunal file, the Department file[1] and the related nomination file[2].

    [1] BCC2015/2593283

    [2] Tribunal case file 1701233

12. On 11 July 2019, the Tribunal completed its review of the nomination application lodged with the Department by NJB Holdings Pty Ltd, the nominator. The Tribunal made a decision approving the nomination. The Tribunal finds that the applicant is now the subject of a nomination for the occupation of internal auditor, employed by the nominator, which the Minister has approved.

13. The Tribunal further finds on the available information that the nomination has not subsequently been withdrawn. The Tribunal has found that it is reasonable to disregard adverse information known to Immigration about the person who made the nomination or a person associated with that person, in the circumstances of the nomination[3].

    [3] Ibid, decision dated 11 July 2019;

14. The Tribunal is also satisfied that the position of internal auditor is still available to the applicant for his continuing employment, and that the application for the visa is made no more than six months after the Minister has approved the nomination.

15. Therefore, cl.186.223 is met.

    Secondary applicants

16. The secondary applicants are members of the primary applicant’s family, being his partner and child.

17. Clause 186.311 deals with criteria for secondary applicants for members of the family unit of the primary applicant.

18. Clause 186.311 requires that the applicants are members of the family unit of a person (the primary applicant) who hold a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and who made a combined application with the primary applicant.

19. On the available information, the Tribunal finds that the second and third-named applicants are members of the family unit of the primary applicant, who satisfies the primary criteria for the grant of the visa, and who made the application combined with the primary applicant.

20. The Tribunal finds that cl.186.311 is met.

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

    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 applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.311 of Schedule 2 to the Regulations.

    Alan McMurran
    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.