RADIM (Migration)

[2019] AATA 2142

RADIM (Migration) [2019] AATA 2142 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Bibi Shenaz RADIM
Mahaboob Radim
Zainab Bibi Hasna Mehereen Delbar

CASE NUMBER:  1712047

HOME AFFAIRS REFERENCE:                BCC2016/1669516

MEMBER:Lilly Mojsin

DATE:5 April 2019

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 of Schedule 2 to the Regulations.

Statement made on 05 April 2019 at 9:35am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 – Employer Nomination Scheme – Direct Entry Stream – nominated position of Accountant (General) (ANZSCO 221111) – tribunal approval of nomination – position not withdrawn – decision under review submitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 1.13, 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 30 May 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 8 May 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 the Direct Entry stream, to work in the nominated position of Accountant (General) (ANZSCO 221111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, that had been made by Bajrang Pty Ltd atf Chaukra Family Trust .

6. The applicants appeared before the Tribunal on 28 February 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 186.233 as applicable in this review is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

8. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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.

9. The Tribunal  [1710780] approved the nomination by Bajrang Pty Ltd atf Chaukra Family Trust  for the occupation of Accountant (General) (ANZSCO 221111). 

10. The applicant is the subject of an approved nomination and it has not been withdrawn.

11. On the evidence before it, the Tribunal is satisfied that 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.

12. Therefore, cl.186.223 is met.

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

    DECISION

14. 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

    Lilly Mojsin
    Member