SHANGARI (Migration)

[2017] AATA 243

SHANGARI (Migration) [2017] AATA 243 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BHARAT SHANGARI
Ms MANDEEP KAUR DHALIWAL

CASE NUMBER:  1507555

DIBP REFERENCE(S):  BCC2014/2562439

MEMBER:D. Dimitriadis

DATE:3 February 2017

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 03 February 2017 at 2:42pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Temporary Residence Transition stream – Subclass 186 (Employer Nomination Scheme) – Graphic Pre-press Trades Worker – Nomination refusal set aside – Adverse information – Sponsorship bar ceased – Matter of second named applicant referred to Department for consideration

LEGISLATION

Migration Act 1958

, ss 65, 360(2)(a)

Migration Regulations 1994

, Schedule 1, Schedule 2, r 1.13, r 5.19  cl 186.223, cl 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 on 16 May 2015 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 to the Department of Immigration and Border Protection (the Department) for the visas on 4 October 2014. 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 Graphic Pre-press Trades Worker (ANZSCO 392211). 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 of Schedule 2 to the Regulations because the nomination of the position had not been approved.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.223.

   Nomination of a position

10. 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.

11. 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.

12. The applicant’s nominating employer, Centrum Printing Pty Ltd, applied to the Department for the approval of the nomination of the position of Graphic Pre-Press Trades Worker (ANZSCO 392211) on 4 October 2014. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

13. On 3 February 2017, the Tribunal set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination (Tribunal file 1505647).

14. On the material before it, the Tribunal is satisfied that the position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3). The Tribunal is satisfied that the person who will employ the applicant was the nominating employer (the nominator) in the application for approval; that the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and the position to which the application relates is the position in relation to which the declaration mentioned in r.1.13A and r.1.13B); of Schedule 1 was made in the application for the grant of the visa.

15. The Tribunal is satisfied that the nomination has been approved and has not subsequently been withdrawn. The Tribunal is satisfied, based on the evidence given by the nominator at the hearing on 1 February 2016, that the position is still available to the applicant. The Tribunal is also satisfied that the application for the visa is made no more than 6 months after the nomination was approved.

16. The Tribunal is satisfied that there is adverse information known to the Tribunal about the nominator or a person ‘associated with’ the nominator. The adverse information is that the nominator had underpaid a Subclass 457 visa holder and this led to the nominator being the subject of a sponsorship bar decision made on 10 November 2014 for a period of 12 months. The information before the Tribunal is that the nominator acknowledged the underpayment and provided verifiable information that the visa holder was paid the full amount owing to her.  The nominator gave evidence at a hearing on 1 February 2017 that to make sure that this mistake does not happen again, they have employed another employee as an accounts officer. Since the sponsorship bar ended the Department has approved the nominator as a standard business sponsor in June 2016 and would have found, in making that decision, that it was reasonable to disregard the adverse information.

17. The Tribunal has taken into account the evidence and is satisfied that 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.

18. The Tribunal is satisfied that cl.186.223 is met.

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

20. The delegate made a decision that the second named applicant did not satisfy the criteria for the grant of the visa. Although the delegate did not identify the criterion, the Tribunal is satisfied that the relevant criterion was cl.186.311 which requires that the second named applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with the primary applicant. The Tribunal is unable to make a direction that the second named meet this criterion, because at the time of the Tribunal’s decision, the first named applicant does not hold a Subclass 186 visa.  The Tribunal refers the case of the second named applicant to the Department to consider her application afresh.

    DECISION

21. 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.

    D. Dimitriadis

    
    

    Member