REKHA DEVI (Migration)

[2020] AATA 5428

REKHA DEVI (Migration) [2020] AATA 5428 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rekha Devi

CASE NUMBER:  1725011

HOME AFFAIRS REFERENCE(S):          BCC2017/2337996

MEMBER:Wan Shum

DATE:23 December 2020

PLACE OF DECISION:  Sydney

DECISION: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.

Statement made on 23 December 2020 at 3:12pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; 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 27 September 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 30 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least two years, and that employer has offered them a permanent position in the same occupation. The employer in this case is GJA Kalra Pty Ltd. The employer applied for approval for a position on 30 June 2017. The nomination was not approved.

4. As a consequence, the delegate in this matter refused to grant the visa because the applicant did not meet 186.223 of Schedule 2 to the Regulations. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).

5. The employer sought review of the decision not to approve the nomination and the applicant also sought review in relation to the visa refusal decision. Both parties were initially represented in relation to the review by the same registered migration agent, but the employer subsequently appointed a different representative. There were multiple nomination applications made by the same employer which were considered concurrently by the same Tribunal.

6. The Tribunal approved the nomination relevant to this matter on 22 December 2020.

7. For the purposes of cl.186.223, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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. The Tribunal has sighted the application made by GJA Kalra Pty Ltd for the nomination which identified the applicant as the nominated person. The letter acknowledging receipt of the application set out the TRN (or nomination transaction number) of EGOF28U0O4. The details of the nomination given on the visa application match that nomination application and the applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c). The relevant nomination sought to meet the requirements of r.5.19(3) and identified the applicant as the 457 visa holder. The Tribunal approved the nomination on 22 December 2020 and it has not been withdrawn. The Tribunal finds that the requirements of cl.186.223(1) are satisfied.

8. In addition, cl.186.223 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.

9. The applicant is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

10. The Tribunal was given information from the Department on 10 July 2020 that there were three allegations from 2015 and 2016, alleging that the nominating business was being paid and/or requesting cash for visas. The information was considered when the application for approval of the nomination was reviewed. While cash for visa activities would be adverse information, the allegations are anonymous and monitoring was undertaken by the Department around the time of the allegations which did not reveal any evidence to support the allegations. Nor has any other evidence come to light since that time. Given this, the Tribunal did not consider that the allegations amount to ‘adverse information’ (as defined) and finds that there is no adverse information known to Immigration about the nominator or person associated with the nominator. There is no other information before the Tribunal which would meet the definition of ‘adverse information’. The Tribunal thus finds that there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person. 

11. Therefore, all of the requirements of cl.186.223 have been met.

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

    DECISION

13. 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.

    Wan Shum
    Member