Rai (Migration)

[2019] AATA 3507

Rai (Migration) [2019] AATA 3507 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Srijana Rai
Mr Navaraj THAPA MAGAR
Master Nirbhaya THAPA MAGAR

CASE NUMBER:  1730979

HOME AFFAIRS REFERENCE(S):           BCC2017/2329396

MEMBER:Alan McMurran

DATE:14 June 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; and

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 14 June 2019 at 9:46am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – financial capacity of nominator – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223(2), 186.311, r 5.19

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 1 December 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 30 June 2017. 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 as the primary applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

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 is not the subject of a nomination which the Minister has approved.

6. The applicant appeared before the Tribunal on 12 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Josef Linker, a director of the nominator. The applicant did not require an interpreter.

7. The applicants’ registered migration agent did not appear at the hearing on 12 June 2019.

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

   Background  

9. The applicant is a 39 year old citizen of the Federal Democratic Republic of Nepal. The secondary applicants are the visa applicant’s husband and child, who are also Nepalese citizens. The visa application was lodged on 30 June 2017.The applicant has a Masters Degree in Human Resource Management from the Australian Catholic University.

10. The applicant’s spouse (first-named secondary applicant) has a Masters Degree in Cyber Security from Macquarie University in Sydney and is employed in the Nepalese Army. The secondary applicant is currently in Nepal awaiting the visa application outcome. The child is living with the applicant and attends school in Sydney. The applicant has been in Australia since February 2012 first as a student then sponsored on a 457 visa by the nominator in 2015.

11. The applicant has been working for the nominator in the role of Marketing Specialist since July 2014 and on a 457 visa since 2015. The nominator has not withdrawn the employment offer to the applicant who wishes to continue in full-time employment with the nominator in her current role. The applicant made submissions at the hearing about her employment, and prior to the hearing in writing to the Tribunal.[1]

    [1] Tribunal case file at f 40

12. The related nomination application was first-heard in the Tribunal on 27 February 2019, then resumed and concluded on 12 June 2019, following further submissions and evidence. Further submissions had been requested concerning the financial performance of the nominator and meeting all the requirements of the regulation 5.19(3) concerning the nomination, in particular the training benchmarks the nominator was required to meet.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.  

14. The nomination application was refused by the Department on 24 October 2017 as the delegate was not satisfied that the nominator had the financial capacity to continue to employ the applicant for a minimum period of 2 years, without excluding the possibility of an extension to that employment.

    Nomination of a position

15. 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.

16. 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.

    The Applicant

17. On 13 June 2019, the Tribunal finalised the nomination review application, setting aside the decision under review, and approving the nomination. The applicant is now the subject of an approved nomination.

18. The Tribunal further finds that there is no adverse information known to Immigration concerning the applicant or any associated person. The position of Marketing Specialist is still available to the applicant with the nominator, and the visa application was made within the requisite period.

19. Therefore, cl.186.223 is met.

    Secondary Applicants

20. Cl. 186. 3 sets out the secondary criteria for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time the decision is made on the application.

21. Cl. 186. 311 requires that the secondary applicants are members of the family unit of a person (the primary applicant) who holds a subclass 186 visa now granted on the basis the primary applicant satisfies the primary criteria for the grant of the visa, and that the secondary applicants have made a combined application with the primary applicant.

22. The Tribunal finds that the secondary applicants are members of the family unit of the applicant, who has met the criteria in cl. 186. 223. The Tribunal finds the secondary applicants, being members of the family unit, meet the requirements in cl. 186. 311.

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

    DECISION

24. 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 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Cl.186.311 of Schedule 2 to the Regulations.

    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 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.