Singh (Migration)

[2024] AATA 3697

Singh (Migration) [2024] AATA 3697 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maninderpal Singh

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  2202581

HOME AFFAIRS REFERENCE(S):          BCC2021/1003308

MEMBER:Alison Mercer

DATE:2 October 2024

PLACE OF DECISION:  Melbourne

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 186.233 of Schedule 2 to the Regulations.

Statement made on 02 October 2024 at 9:56am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Painting Trades Worker – tribunal set aside nomination decision –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, 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 5 February 2022 to refuse to grant the applicant 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 28 April 2021. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Painting Trades Worker.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer had been refused by the Department on 22 September 2021. The applicant therefore did not meet the criteria for the grant of a subclass 186 visa in the Direct Entry stream and had not made any claims against any other stream.

6. The Tribunal received a review application from the applicant on 25 February 2022, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Amber Gupta, as his representative and authorised recipient for correspondence.

7. The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The representative also attended the Tribunal hearing.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   Nomination of a position

9. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

10. 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 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.

11. There is no dispute that at the time of the delegate’s decision on 5 February 2022, the nomination of the applicant by his employer, Kamalke Pty Ltd had been refused by the Department.

12. However, the Tribunal’s records indicate that Kamalke Pty Ltd sought review of that decision with the Tribunal, and that on 1 October 2024, the Tribunal set aside the Department decision and substituted a decision to approve the nomination made by Kamalke Pty Ltd (see decision AAT/MRD 2113591 of 1 October 2024).

13. Based on the information provided by to the Tribunal by the applicants and by Kamalke Pty Ltd, the Tribunal is satisfied that:

    ·the nomination has been approved and has not been subsequently withdrawn;

    ·there is no ‘adverse information’ known to Immigration about Kamalke Pty Ltd or a person ‘associated with’ that company (within the meaning of reg 1.13A and reg 1.13B);

    ·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. Therefore, the Tribunal finds that cl 186.233 is met.

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 186.233 of Schedule 2 to the Regulations.

    Alison Mercer
    Senior Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); 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.