Singh (Migration)

[2020] AATA 4635

Singh (Migration) [2020] AATA 4635 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maninder Singh
Mrs Rupinder Kaur
Miss Ashmeen Kaur

CASE NUMBER:  1812787

HOME AFFAIRS REFERENCE(S):          BCC2017/4334361

MEMBER:Andrew George

DATE:27 August 2020

PLACE OF DECISION:  Darwin

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.186.212 of Schedule 2 to the Regulations;

·cl.186.212A of Schedule 2 to the Regulations;

·cl.186.221 of Schedule 2 to the Regulations;

·cl.186.222 of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 27 August 2020 at 6:01pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Sheet Metal Worker – nomination approved upon review – English language proficiency – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 245
Migration Regulations 1994, rr 1.13, 1.15, 5.19; Schedule 2, cls 186.212, 186.221, 186.222, 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 30 April 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 17 November 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Sheet Metal Worker.

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 relevant nomination was refused.

6. The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments. This was a combined hearing with the visa nomination in case number 1807571, so the Tribunal also heard from Mr Robert Giuliani and Ms Janelle Giuliani who are Directors of MRSM Fabrications Pty Ltd. The parties were represented by Dr Rahuraj of RTN Migration and Citizenship Services.

7. On 26 August 2020 the Tribunal set aside the nomination decision under review in case number 1807571 and substituted a decision approving the nomination. Accordingly, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Employment will be provided

8. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application. For the reasons contained in paragraphs [20] to [23] of the decision in case number 1807571, the Tribunal is satisfied that the employment referred to in the r.5.19 nomination application will be provided. Therefore, cl.186.212 is met.

   Whether the applicant has engaged in conduct in contravention of the Act

9. An applicant meets cl.186.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act. As there is no evidence before the Tribunal to suggest that the applicant has in any such conduct, the Tribunal is satisfied that cl.186.212A is met.

   Age requirements

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

11. The Tribunal has the applicant’s Indian passport before it, with the three last digits of its number being 186. From that document, the Tribunal is satisfied that the applicant was born on 11 March 1987. Therefore, cl.186.221 is met.

    English language proficiency

12. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency or be in a class of persons specified in a relevant legislative instrument: cl.186.222. For visa applications made on or after 1 July 2017 the level required is competent English which is defined in r.1.15C of the Regulations. The applicant will meet the definition if he undertook a specified language test in the three years preceding the visa application and achieved a specified score.

13. On 11 September 2017, being within three years of the visa application, the applicant undertook a Pearson Test of English Academic (‘PTE Academic’). He received a score of 53 for Listening, 53 for Reading, 72 for Speaking, and 51 for Writing. The applicant required a score of 50 in each of these areas and therefore cl.186.222 is met.

    Nomination of a position

14. 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.

15. 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.

16. This criterion is met for the reasons contained in the decision in case number 1807571. Therefore, cl.186.223 is met.

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

    DECISION

18. 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.186.212 of Schedule 2 to the Regulations;

    · cl.186.212A of Schedule 2 to the Regulations;

    · cl.186.221 of Schedule 2 to the Regulations;

    · cl.186.222 of Schedule 2 to the Regulations; and

    · cl.186.223 of Schedule 2 to the Regulations.

    Andrew George
    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.