SINGH (Migration)

[2021] AATA 2030

SINGH (Migration) [2021] AATA 2030 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakhwinder SINGH

CASE NUMBER:  1821965

HOME AFFAIRS REFERENCE(S):          BCC2017/1766527

MEMBER:Karen McNamara

DATE:7 May 2021

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(2) of Schedule 2 to the Regulations.

Statement made on 7 May 2021 at 3:49pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19; 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 Home Affairs on 17 July 2018 to refuse to grant the application by Mr Lakhwinder Singh (the applicant) for an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 May 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, Mr Lakhwinder Singh is seeking the visa in the Temporary Residence Transition stream, to work in the nominated occupation of Cook (ANZSCO 351411).

5. On 17 July 2018, the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because on 31 May 2018, the nomination application lodged by Manjits Indian Restaurant (Mitali) Pty Ltd was refused by a delegate of the Minister for Home Affairs.

6. The applicant applied to the Tribunal on 30 July 2018, for review of the delegate’s decision.

7. On 25 March 2021, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satvinder Pal Singh (the nominator) and company HR Manager, Mr Inder Pal Kochar in the related matter for the nomination review application (AAT Case file 1817795). 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. 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 requirements of cl.186.223(2).

    Nomination of a position

11. 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.

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 reg 1.13A and reg 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 nominating employer, Manjits Indian Restaurant (Mitali) Pty Ltd, applied to the Department of Immigration and Border Protection for approval of a nomination in relation to the occupation of Cook (ANZSCO 351411). That nomination was refused by the Department and consequently the applicant’s visa application was refused.

14. Manjits Indian Restaurant (Mitali) Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1817795). On 7 May 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.186.223(2) of Schedule 2 to the Regulations.

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

    DECISION

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

    Karen McNamara
    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.