Shrestha (Migration)

[2021] AATA 198

Shrestha (Migration) [2021] AATA 198 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prabin Shrestha
Mrs Prerana Singh
Master Soumya Shrestha

CASE NUMBER:  1830051

HOME AFFAIRS REFERENCE(S):          BCC2017/812370

MEMBER:Karen McNamara

DATE:27 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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.186.233(3) of Schedule 2 to the Regulations.

Statement made on 27 January 2021 at 3:06pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – subject of approved nomination – refusal of related position nomination application set aside on review – members of family unit – decision under review remitted

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

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 Home Affairs on 24 September 2018 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 1 March 2017. 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 Mr Prabin Shrestha (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Pastrycook (ANZSCO 351112).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations which required Mr Prabin Shrestha to be the subject of an approved nomination. The delegate found that on 20 August 2018, the nomination lodged by Farm 186 Pty Ltd, was refused by a delegate of the Minister for Home Affairs.

6. The applicants applied to the Tribunal on 14 October 2018 for review of the delegate’s decision.

7. On 9 December 2020, the applicants represented by Mr Prabin Shrestha appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Christopher Smith (the nominator) in the related matter for the nomination review application (AAT Case file 1826400). The related matters were heard concurrently in a combined hearing.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

9. The applicants were represented in relation to the review by their registered migration agents. The representatives attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.233(3).

    Nomination of a position

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 nominating employer, Farm 186 Pty Ltd applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the position of Pastrycook (ANZSCO 351112). That nomination was refused by the Department and consequently the applicants visa applications were refused.

15. Farm 186 Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1826400). On 27 January 2021, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.233(3) of Schedule 2 to the Regulations.

16. The second named applicant (Mrs Prerana Singh) and third named applicant (Master Soumya Shrestha), applied on the basis of being a member of the family unit of the first named applicant (Mr Prabin Shrestha). The application by Mrs Prerana Singh and Master Soumya Shrestha will be determined by reference to the outcome of Mr Prabin Shrestha’s application on remittal to the Department for consideration.

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

DECISION

1. The Tribunal remits the applications 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.186.233(3) of Schedule 2 to the Regulations.

   Karen McNamara
   Member

   
   

   ATTACHMENT A

   186.233(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:

   (i)subparagraph 5.19(4)(h)(i); or

   (ii)subregulation 5.19(2) as in force before 1 July 2012; and

   (b)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 person who will employ the applicant is the person who made the nomination.

   (3)     The Minister has approved the nomination.

   (4)     The nomination has not subsequently been withdrawn.

   (4A)    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.

   (5)     The position is still available to the applicant.

   (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.