Singh (Migration)

[2020] AATA 4132

Singh (Migration) [2020] AATA 4132 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranjeet Singh
Mrs Ramandeep Kaur

CASE NUMBER:  1918216

HOME AFFAIRS REFERENCE(S):          BCC2018/4320243

MEMBER:Alan McMurran

DATE:21 September 2020

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

Secondary Applicant

The Tribunal remits the application by the secondary applicant to the Department for consideration of the remaining criteria for the visa.

Statement made on 21 September 2020 at 5:02pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Telecommunications technician – subject of an approved nomination ­­– decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 8 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2019 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 4 October 2018. 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. 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 telecommunications technician.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the Minister has not approved the nomination.

5. The applicants appeared before the Tribunal in a combined telephone hearing with a review of the nomination decision on Thursday, 17 September 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s nominee, and from the director of the nominator, Mr Condos. The hearing was conducted in accordance with the Tribunal’s pandemic protocol, with both witnesses appearing by telephone from different locations and without a representative.

6. The applicants were not represented by a registered migration agent either before the Tribunal, or prior in the application to the Department. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the subject of a nomination approved by the Minister in accordance with Regulation 186.223.

   Nomination of a position

8. 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.

9. 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.

10. The Tribunal notes that the visa application by the nominee is dependent upon the outcome of the application by the nominator, Eleko Pty Ltd, which application was refused by the Department on 6 May 2019 and in circumstances where the applicant’s nominator had failed to successfully upload documents in support of the nomination application. Similarly, there was no evidence provided to support the nominee’s application.

11. The applicant is supported in this application by the information now lodged in support of the nomination application[1] . On 21 September 2020, the Tribunal made an order setting aside the decision by the Department, remitting the matter, and approving the nomination by the nominator, Eleko Pty Ltd. The Tribunal finds therefore that the nominator is now the subject of a nomination which has been approved by the Minister.

    [1] Tribunal case file 1911336

12. The Tribunal is further satisfied on the available information that the nominee is not the subject of any adverse information known to immigration or the Tribunal, that the position of telecommunications technician is still available to the applicant who is working in the role, and that the visa application is made no more than six months following the nomination approval.

13. Therefore, cl.186.223 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    Secondary applicant

14. The Tribunal is satisfied on the available information and the evidence of the nominee at hearing that the secondary applicant is a member of the family unit of the primary applicant within the meaning of Regulation 186.311.

15. Consequently, it is appropriate to remit the application by the secondary applicant to the Department the consideration of the remaining criteria for the visa.

    DECISION

16. 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 of Schedule 2 to the Regulations; and

    Secondary applicant

    The Tribunal remits the application by the secondary applicant to the Department for consideration of the remaining criteria for the visa.

    Alan McMurran
    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.