Sidhu (Migration)

[2022] AATA 1649

Sidhu (Migration) [2022] AATA 1649 (3 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Karamjeet Kaur Sidhu
Miss Hargun Kaur Deol
Mr Sukhraj Singh Deol

REPRESENTATIVE:  Ms Sarah Louise Gillis (MARN: 9359588)

CASE NUMBER:  2101522

HOME AFFAIRS REFERENCE(S):          BCC2017/366720

MEMBER:R. Skaros

DATE:3 March 2022

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(2) of Schedule 2 to the Regulations.

Statement made on 03 March 2022 at 3:04pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 20 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 January 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination in relation to the applicant was not approved.

6. The applicant appeared before the Tribunal on 17 February 2022 to give evidence and present arguments.

7. The applicants were represented in relation to the review. The representative attended the hearing.

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 nomination of the position has been approved.

   Nomination of a position

10. 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. In addition, this criterion also requires that the nomination has been approved

11. In this case, the applicant applied for visa on the basis of a nomination made by Saffron Indian Cuisine NSW Pty Ltd. That nomination was refused by the Department.

12. The nominator applied for review of the Department’s decision to refuse the nomination. The decision to refuse the nomination was affirmed by the Tribunal (differently constituted). The nominator applied for judicial review of that decision and the Court remitted the matter to the Tribunal for reconsideration. On 3 March 2022, the present Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

13. As the relevant nomination for the position has now been approved, the applicant now satisfies the requirement in cl.186.223(2).

14. Given these findings, the appropriate course is to remit the visa application to the Minister with a direction that the applicant satisfied cl.186.223(2). Upon remittal, the Department will consider the remaining criteria for the grant of visas.

    DECISION

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

    R. Skaros
    Senior Member

    
    
    

16. 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.