Pincha Dewage (Migration)

[2019] AATA 4942

Pincha Dewage (Migration) [2019] AATA 4942 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shavini Asangika Nadeeshani Pincha Dewage

CASE NUMBER:  1731425

HOME AFFAIRS REFERENCE(S):           BCC2016/1595225

MEMBER:Sean Baker

DATE:15 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the 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 15 November 2019 at 10:26am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hairdresser – subject of an approved nomination – adverse information – breach of sponsorship obligations – 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 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 April 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). 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of hairdresser.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by Hairway Fountain Gate Pty Ltd was refused by a delegate. This was the sole basis for the refusal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the nomination has been approved

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   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. I have had regard to the material provided to the Department in the application, as well as the material provided to the Tribunal. I have also had regard to my decisions in Tribunal cases 1714900 (sponsorship bar) and 1727600 (approval of nomination), which are directly relevant to this case. In case 1714900, I considered the sponsorship bar imposed on the nominator and varied the period of the bar. In case 1727600 I considered the circumstances of the nomination, and in particular the basis for the delegate’s refusal of the nomination, being the adverse information that the sponsor was barred. I noted that I had varied the period of the bar so that it was no longer in place, and that because of the durable changes to management practices and change of ownership, I considered it appropriate to disregard the adverse information.

12. In this case, taking into account information in the application form and attached to that application, the position to which the application relates was nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3) was in relation to which the applicant is identified as the holder of a Subclass 457 visa, and is that to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa. The applicant therefore meets cl.186.223(1).

13. Having regard to my decision in case 1727600, I find that the nomination has been approved and the applicant therefore meets cl.186.223(2).

14. Having regard to the hearings held in matters 1714900 (sponsorship bar), where I spoke to the directors of the business which is the nominator in this case, and with no information to the contrary I find that the nomination has not subsequently been withdrawn and the applicant therefore meets cl.186.223(3).

15. I have had regard to the adverse information, being that the nominator had had a sponsorship bar imposed.

16. I note that in Tribunal case 1714900, I varied that sponsorship bar to run from 27 June 2017 until the date that ownership of the business changed, 6 May 2018. My reasons for varying that sponsorship bar are set out in that decision. The bar is therefore no longer in effect.

17. I have therefore considered this varied period in considering the adverse information and whether to disregard that information under cl.186.223(3A)(b).

18. In considering whether it is reasonable to disregard the adverse information, I have taken into account policy, which sets out a range of factors, which may assist in considering what is reasonable. I have taken into account the information in submissions and attached documents provided in this matter and also, in more detail, in the matter of the sponsorship bar, Tribunal case 1714900, and 1727600.

19. I have taken into account the nature of the adverse information, and the acknowledgement by the director of the nominator, Mr Bansal, that the breach was serious. I have also taken into account that the business has put in place significant and durable changes to their processes which in my assessment will make any further non-compliance with sponsorship obligations unlikely. The source of the information became known through the site visit of the Department, and therefore the adverse information is highly credible. I note also that the business has conceded the breach and the adverse information. In this case the adverse information relates to a breach of sponsorship obligations, and these have been substantiated and admitted to by the business. The adverse information here relates to a historical contravention of the sponsorship obligations, and as above I consider that the business has put in place significant and durable changes to their processes. I have also taken into account the significant steps the business has taken to ensure the circumstances that led to the adverse information do not recur. As above, I consider that the changes made to practices at the business make any current or future non-compliance unlikely. The competent authority here was the Department, no other authority has been involved. The authority found the non-compliance with sponsorship obligations serious and imposed a sponsorship bar, but did not cancel the sponsorship. For the reasons above, I considered in the sponsorship case that that bar should be varied. 

20. Having considered these factors, and my actions on the related case of the sponsorship bar and the approval of the nomination, I consider it reasonable and appropriate in the circumstances of this case to disregard the adverse information that the nominator was barred from sponsoring further persons under the existing approval as a standard business sponsor AND preventing the sponsor from making any future applications for approval as a standard business sponsor and any other specified classes of sponsor for the period from the date of the delegate’s decision, 27 June 2017, until 6 May 2018. I find that the requirement in cl.186.223(3A)(b) is met and therefore that cl. 186.223(3A) is met.

21. Having regard to the evidence given by the nominator at the hearings in matter 1714900, I find that the position is still available to the applicant and that she therefore meets cl.186.223(4).

22. I decided that the nomination was approved on 18 October 2019, therefore the application for the visa is made no more than 6 months after the Minister approved the nomination and the applicant satisfies cl.186.223(5).

23. Therefore, cl.186.223 is met.

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

    DECISION

25. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations;

    Sean Baker
    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.