SHAHRIAR (Migration)

[2018] AATA 4848

SHAHRIAR (Migration) [2018] AATA 4848 (12 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md Golam SHAHRIAR
Mrs Kaniz Fatema Liza

CASE NUMBER:  1703760

HOME AFFAIRS REFERENCE(S):           BCC2015/3261757

MEMBER:Alan McMurran

DATE:12 October 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; and

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

·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 12 October 2018 at 12:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – subject of an approved nomination – nomination approved – employment contract – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.223, 186.311

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 16 February 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 6 November 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.

4. 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.

5. In the present case, the first named applicant (the applicant) is a citizen of Bangladesh and is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411) at the Nelson Hotel, Bondi Junction Sydney, where he has been employed since 2013.

6. 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 a nomination approved by the Minister.

7. The applicants appeared before the Tribunal on 11 October 2018 in a combined hearing with a review by the nominator, the Nelson Hotel Pty Ltd,[1] to give evidence and present arguments. The Tribunal received oral evidence from the applicant and from the hotel manager, Mr Toby Richardson.

   [1] Tribunal case file 1701511

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 the applicant meets the criteria in clause 186.223 and in particular is the subject of a nomination which the Minister has now approved.

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision.

12. 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.

13. 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.

14. The Tribunal has had regard to the information contained in the Tribunal’s file and the Department’s file[2] for the applicant, together with the available information from the hearing, and the nomination files from the Department and the Tribunal.

    [2] BCC2015/3261757

15. At the hearing, the applicant gave evidence about his arrival in Australia as a student and subsequent work history for the nominator since 2012.

16. The Tribunal explained to him the purpose of the hearing and the fact it was conducted with the nominator and the review of the nominator’s application. The applicant took no objection to the process and appeared to understand the process and without needing an interpreter.

17. The Tribunal has considered all the information, and notes that on 11 October 2018, following the hearing, the Tribunal decided to set aside the decision to refuse the nomination and substituted a decision that the nomination was approved.

18. The Tribunal finds therefore that the applicant is now the subject of an approved nomination and meets the requirement in sub-regulation 186.223(2).

    Other Remaining Criteria – 186.223

19. The Tribunal notes that the applicant is nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3), and is identified as a holder (as at November 2017) of a subclass 457 visa, and in relation to which the relevant declaration was made in the application for the grant of the visa pursuant to paragraph 1114B (3) (d) of Schedule 1.

20. The Tribunal is satisfied the applicant meets the requirements of cl.186.223 (1).

21. The Tribunal further finds on the information before it that the nomination has not subsequently been withdrawn, and the applicant meets the requirement in cl.186.223 (3).

22. The Tribunal has had regard to all information available to it, including the interrogation of the witnesses at hearing, and finds there is no adverse information known to Immigration (or the Tribunal) about the person who made the nomination or a person associated with that person. The requirement in cl.186.223(3A) is met.

23. From the information available at the hearing, including a copy of the employment contract provided to the applicant by the nominee and dated September 2018, the position of Cook is still available to the applicant at the Nelson Hotel in Sydney, and the requirement in cl.186 .223(4) is met.

24. The Tribunal further finds that the visa application is made no more than 6 months following approval by the Minister of the application for nomination.

25. The applicant therefore meets the requirements in cl. 186.223 (5).

26. Therefore, cl.186.223 is met.

    Secondary Applicant

27. The Tribunal notes the second named person in the application is the wife of the applicant and a family member for the purposes of cl.186.311 of the Regulations.

28. The second named applicant appeared at the hearing with the applicant and was identified as Mrs Kaniz Fatema Liza and gave evidence.

29. The Tribunal is satisfied that the second named applicant meets the requirements in cl.186.311.

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

    DECISION

31. 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 applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa

    ·Cl.186.311of 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.