Patel (Migration)

[2018] AATA 5324

Patel (Migration) [2018] AATA 5324 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jayeshkumar Jayantibhai Patel
Mrs Heenaben Jayeshkumar Patel
Miss Upasana Patel
Mr Shubh Patel

CASE NUMBER:  1712428

DIBP REFERENCE(S):  BCC2016/2742352

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 December 2018 at 3:09 pm (VIC time)

DATE OF WRITTEN RECORD:                4 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for subclass 186 visas for reconsideration, with a direction that first named applicant meets the criterion set out in clause 186.223(2) of schedule 2 to the Migrations Regulations 1994.

Statement made on 04 January 2019 at 10:30am

CATCHWORDS

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

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2 cl 186.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 29 May 2017 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. At the hearing on 6 December 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 18 August 2016, the applicant and his family applied to the Department of Foreign Affairs for subclass 186 visas in the Temporary Residence Transition nomination stream.

4. The visas were refused by the Department on the basis that the primary applicant did not have an approved nomination.

5. The applicant’s nominating employer, Derek Faulknall, applied to nominate the position of bricklayer in respect of the applicant.  I have today, set aside the decision of the Department to refuse that nomination and substituted it with a decision to approve the nomination.

6. As the relevant nomination has now been approved, the applicant meets the requirement in clause 186.223(2).

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

8. As the second, third, and fourth named applicants applied on the basis of being a member of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

   DECISION

9. The Tribunal remits the applications for subclass 186 visas for reconsideration, with a direction that first named applicant meets the criterion set out in clause 186.223(2) of schedule 2 to the Migrations Regulations 1994.

   Sheridan Lee
   Member