SHELADIYA (Migration)

[2018] AATA 1779

SHELADIYA (Migration) [2018] AATA 1779 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHIRAGKUMAR PRAFULBHAI SHELADIYA

CASE NUMBER:  1702692

DIBP REFERENCE(S):  BCC2016/1300230

MEMBER:Hugh Sanderson

DATE:4 May 2018

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 04 May 2018 at 2:23pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.233

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 January 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 29 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). 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 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 visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the Department had refused the nomination application filed by the applicant’s sponsor.

6. The applicant applied for the visa on the basis of his nomination for the position of a transport company manager sponsored by his employer, Renesav Pty Ltd. The Department issued a decision on 20 December 2016 refusing the nomination application by the sponsor. Accordingly, the delegate found that as the applicant was not the subject of an approved nomination the applicant did not meet the criteria for the grant of the visa and his application was also refused.

7. Both the sponsor and the applicant sought reviews of the Department’s decision before the Tribunal. On 11 April 2018 the Tribunal issued a decision setting aside the Department’s decision to refuse the nomination application and substituted a decision approving the nomination application of the sponsor for the applicant.

8. In light of the information now before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.

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 is the subject of an approved nomination.

    Nomination of a position

11. 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.

12. 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.

13. The position to which the application relates is the position nominated in the application and in relation to which the applicant was identified as the holder of a Subclass 457 visa. The necessary declaration was made with the application for the grant of the visa.

14. The decision of the Department to refuse the nomination application by the sponsor has been set aside by the Tribunal. A decision has now been made approving the nomination. The nomination has not been withdrawn and the Tribunal finds the position is still available to the applicant. The application for the visa has been made within the required time limits.

15. For the above reasons, the Tribunal finds that the applicant meets the criteria in cl.186.223.

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

    DECISION

17. 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.

    Hugh Sanderson
    Member