Sarbjit Kaur (Migration)

[2019] AATA 5230

Sarbjit Kaur (Migration) [2019] AATA 5230 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sarbjit Kaur
Mr Rajesh Kumar
Mr Ankush Kumar
Mr Lovish Kumar

CASE NUMBER:  1707336

HOME AFFAIRS REFERENCE(S):           BCC2015/2489658

MEMBER:Susan Trotter

DATE:26 September 2019

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations.

Statement made on 25 September 2019 at 4:58pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 4 April 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 27 August 2015. 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 Temporary Residence Transition stream, to work in the nominated position of Hairdresser for Aussie Looks Hair & Beauty Salon Pty Ltd. The Temporary Residence Transition stream, prior to 18 March 2018, enabled Subclass 457 visa holders who had worked for their employer for the past two years to apply for a permanent visa where the employer had offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the first-named applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination by Aussie Looks Hair & Beauty Salon Pty Ltd had been refused on 8 February 2017 and that accordingly the first-named applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole. Further, consequently, the other applicants did not meet the secondary criterion in cl.186.311 as required.

6. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 April 2017.

7. The applicants appeared before the Tribunal on 29 August 2019 to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

11. 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.

12. Records of the Department of Home Affairs (the Department) indicate that the first-named applicant’s employer, Aussie Looks Hair & Beauty Salon Pty Ltd, made an application to have the position of Hairdresser approved, with the first-named applicant as the nominee, with the Department on 27 May 2015. The nomination application was refused on 8 February 2017 and Aussie Looks Hair & Beauty Salon Pty Ltd applied to the Tribunal seeking review of the decision on 24 February 2017.

13. On 26 September 2019, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Aussie Looks Hair & Beauty Salon Pty Ltd.

14. Therefore, cl.186.223(2) is now met in relation to the first-named applicant.

15. As the other named applicants applied on the basis of each being a member of the family unit of the first-named applicant, their applications will be determined by reference to the outcome of the first-named applicant’s application on remittal to the Department for reconsideration.

    Conclusion

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

17. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction – Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

18. 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(2) of Schedule 2 to the Regulations.

    Susan Trotter
    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.