Patel (Migration)

[2020] AATA 1625

Patel (Migration) [2020] AATA 1625 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mitalben Priteshkumar Patel
Mr Priteshkumar Rameshbhai Patel
Master Veer Priteshkumar Patel
Miss Vyaana Patel

CASE NUMBER:  1931289

HOME AFFAIRS REFERENCE(S):          BCC2019/2000284

MEMBER:Alan McMurran

DATE:21 May 2020

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(2) of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Secondary applicants

The Tribunal remits the applications by the secondary applicants for reconsideration with the direction that the applications be considered for the remaining criteria.

Statement made on 21 May 2020 at 10:01am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 4 November 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2019 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, who are citizens of the Republic of India, applied for the visas on 18 April 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. 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 Cook.

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 the applicant was not the subject of an approved nomination by the Minister. The nomination of the applicant by AHS Trading Trading Australia Pty Ltd was refused by the Department on 11 September 2019.

6. On 21 May 2020, the Tribunal considered afresh the nomination application. In that review, the Tribunal had regard to a large number of documents submitted by the nominator and decided to set aside the Department’s decision.

7. Accordingly, the Tribunal finds it is now able to favourably determine this application for review by the visa applicants under s.360 (2) of the Act, and without a hearing.

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 applicants are the subject of a nomination which the Minister has approved under regulation 186.223 (2) of the Regulations.

11. The decision in relation to the secondary applicants, as members of the family of the primary review applicant, follows the decision for the primary review applicant. The Tribunal has had regard to the information provided on its case file, together with the Department file for the visa applicants, and the related files for the nomination.

    Nomination of a position

12. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision.

13. 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.

14. 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.

15. On the information presently available, the Tribunal finds that the nomination has been approved following the review and decision by the Tribunal on 21 May 2020. The Tribunal finds the nomination application has not been withdrawn.

16. Having regard to the available information, the Tribunal finds there is no adverse information known to Immigration (or the Tribunal) about the nominator, or a person associated with the nominator (including the nominee) within the meaning of r.1.13A and r.1.13B. The tribunal further finds that the position of cook in the nominator’s restaurant is still available to the applicant. The tribunal is further satisfied the visa application was made no more than 6 months following the nomination approval.

17. Therefore, cl.186.223 is met.

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

    Secondary applicants

19. The second, third and fourth named applicants (secondary applicants) are members of the family unit of the primary review applicant. Secondary applicants must be members of the family unit of a person who has satisfied the primary criteria. All criteria must be satisfied at the time a decision is made on the application for the visas.

20. As the Tribunal has found the primary review applicant meets the criteria in clause 186.223 of the Regulations, the appropriate course is to remit the applications by the secondary applicants to the Department for further consideration of the remaining criteria.

    DECISION

21. 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; and

    ·cl.186.223 of Schedule 2 to the Regulations.

    Secondary applicants

    The Tribunal remits the applications by the secondary applicants for reconsideration with the direction that the applications be considered for the remaining criteria.

    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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.