SAEED (Migration)

[2018] AATA 2634

SAEED (Migration) [2018] AATA 2634 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tamanna SAEED
Mr Muhammad Shahid QURESHI
Miss Rifa SHAHID
Miss Soha SHAHID
Master Muhammad Shaheer QURESHI

CASE NUMBER:  1714927

DIBP REFERENCE(S):  BCC2016/1142934

MEMBER:Hugh Sanderson

DATE:8 June 2018

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 08 June 2018 at 9:29am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Employer Nomination Scheme – 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 23 June 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 16 March 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 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 transport company manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

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 nomination application of the applicant’s sponsor had been refused.

6. The applicant’s sponsor, Nandi Services Pty Ltd, applied for a review of the decision of the Department refusing the nomination application. On 1 June 2018 the Tribunal issued a decision setting aside the Department’s decision to refuse the nomination and substituted a decision approving the nomination application of the sponsor.

7. The Tribunal has proceeded to a decision in the matter without the need for a hearing. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is subject of an approved nomination.

   Nomination of a position

9. 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). For those purposes, 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.

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 applicant was nominated by Nandi Services Pty Ltd for the position of a transport company manager. The position is the same as in the r.5.19 nomination application and the employer is the nominator, Nandi Services Pty Ltd.

12. The nomination was initially refused by the Department, however, on 1 June 2018 the Tribunal made a decision to set aside the refusal and substituted a decision approving the nomination. The Tribunal is satisfied that the nomination has not been withdrawn and that the position is still available to the applicant. The Tribunal is satisfied that the visa application was not made more than six months after the nomination of the position was approved. There is no information before the Tribunal that there is any adverse information known to the Department about the nominating business or any person associated with that business.

13. Accordingly, the Tribunal finds that the applicant meets the requirements in cl.186.223. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

14. The applications of the second named visa applicants are based on being members of the family unit of the first named visa applicant who meets the primary criteria. As the Tribunal is remitting the application of the first named visa applicant with a finding that she meets the requirements of cl.186.223 and the remaining criteria for her application should now be reconsidered, the applications of the second named visa applicants, as members of her family unit, should now also be reconsidered in full.

    DECISION

15. 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.

    Hugh Sanderson
    Member