Pathak (Migration)

[2020] AATA 1083

Pathak (Migration) [2020] AATA 1083 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hiral Pradyumankumar Pathak
Mr Devalkumar Girishbhai Patel

CASE NUMBER:  1801349

HOME AFFAIRS REFERENCE(S):          BCC2016/3195959

MEMBER:Alison Mercer

DATE:7 April 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 of Schedule 2 to the Regulations.

Statement made on 07 April 2020 at 5:35pm

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), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 10 January 2018 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 26 September 2016. 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 Cook.

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 she was the subject of an approved nomination. The delegate found that a nomination of the applicant by her Australian employer, D & H Restaurant Pty Ltd (trading as Pakwan Indian Restaurant), was rejected by the Department on 21 November 2017. The delegate also refused to grant subclass 186 visas to the second named applicant (the applicant’s husband) on the grounds that he did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, and there was no evidence that he met the primary visa criteria in his own right.

6. The Tribunal received a review application from the applicants on 18 January 2018, which was accompanied by a copy of the delegate's decision, and an authority by which they appointed a registered migration agent, Mr Joseph Italiano, as their representative and authorised recipient for correspondence.

7. The applicant attended a Tribunal hearing on 24 January 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

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. The Department's records indicate that the applicant's employer, D & H Restaurant Pty Ltd, made an application to have the position of Cook approved, with the applicant as the nominee, with the Department on 26 September 2016.

12. This nomination application was refused on 21 November 2017 and the employer sought review of that decision with the Tribunal on 29 November 2017. On 7 April 2020, the Tribunal (as presently constituted) set aside the Department's decision to refuse to approve the nomination and substituted a decision to approve the nomination by D & H Restaurant Pty Ltd (see AAT/MRD decision 1730006 of 7 April 2020).

13. Accordingly, the Tribunal is satisfied that:

    ·the person (in this case, business) that will employ the applicant is D & H Restaurant Pty Ltd, who made the nomination application;

    ·that nomination has been approved and has not been withdrawn;

    ·from a review of the Department's Integrated Client Services Environment electronic records, and based on findings made in the Tribunal’s decision in 1730006 for the nomination review, 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);

    ·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.

14. Therefore, the Tribunal finds that cl.186.223 is met by the applicant.

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

16. As the second named applicant applied on the basis that he is a member of the family unit of the applicant, his application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration

    DECISION

17. 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.

    Alison Mercer
    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.