Patel (Migration)

[2020] AATA 3861

Patel (Migration) [2020] AATA 3861 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ashaben Vasantkumar Patel
Mr Anandkumar Patel
Ms Aneri Patel

CASE NUMBER:  1728932

HOME AFFAIRS REFERENCE(S):          BCC2017/1343389

MEMBER:Susan Reece Jones

DATE:10 July 2020

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(2) of Schedule 2 to the Regulations.

Statement made on 10 July 2020 at 4:38pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Graphic Designer – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19; 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 Immigration and Border Protection on 9 November 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 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 Designer (ANZSCO: 232411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required that the applicant be the subject of an approved nomination by her nominating employer. The delegate found that the Department had refused to approve the nomination of the nominee by 9^th House Traders Pty Ltd on        8 December 2017 on the basis the nomination did not satisfy r.5.19(3)(f) of the Regulations because the nominator failed to provide any evidence of payroll expenditure and full accounting of training benchmark payment obligations.

6. The applicants appeared before the Tribunal on 15 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s sole director, Mr. Andrew Stapleton.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

8. The applicants were represented in relation to the review by their registered migration agent, Mr Nabeel Lang of Red Earth Migration who also attended the Tribunal hearing.

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 applicant meets the requirements of cl.186.223.  

    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(cl.186.223(2) and (3));

    ·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(cl.186.223(3A));

    ·the position is still available to the applicant (cl.186.223(4)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).

13. The applicant applied for a visa on the basis of a nomination made by 9^th House Traders Pty Ltd. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 5 October 2017. 

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 10 July 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.223(2).

16. Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

17. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that he meets the requirements of clause.186.223(2), the remaining criteria for the applicant should now be reconsidered. In addition, the application of the second and third named visa applicants should also now be reconsidered in full.

    DECISION

18. 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(2) of Schedule 2 to the Regulations.

    Susan Reece Jones
    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.