Singh (Migration)

[2020] AATA 1674

Singh (Migration) [2020] AATA 1674 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep Singh
Mrs Ranjeet Kaur
Master Ekam Singh

CASE NUMBER:  1721838

HOME AFFAIRS REFERENCE(S):          BCC2017/117527

MEMBER:George Hallwood

DATE:2 March 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications 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

Statement made on 02 March 2020 at 3:32pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Restaurant Manager –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, cls 186.223, 186.242

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 5 September 2017 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 10 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 (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 Restaurant Manager.

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 at the time of the decision the applicant was not the subject of an approved nomination.

6. Mr Singh’s application was also considered by the delegate against other streams within this subclass visa. The delegate found that the nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(4) the applicant did not meet regulation 186.233 for the Direct Entry Scheme.

7. The delegate also found that as the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant does not meet the requirements of regulation 186.242.

8. The dependent applicants included in the application were found by the delegate not to have made any claim towards satisfying this class of visa other than as a claimed member of Mr Singh’s family unit for the purpose of this application.

9. The applicants appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. This was a combined hearing with the nominator’s, North East Region Training Association trading as Morley Training Centre AAT case number 1716187. The Tribunal also received oral evidence from Mr Kosagi Kiran, the chairman of the nominator.  

10. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary applicant meets the requirements of cl.186.223 of the Regulations.

Nomination of a position

1. 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.

2. 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.

3. The Tribunal has before it the departmental file which includes the visa application and supporting documentation. Further material has also been provided by the applicant during the course of the review.

4. The evidence includes an employment contract dated 19 December 2019 which states that the applicant will be employed as an International Student Liaison Officer (Community Worker - ANZSCO: 411711). The contract goes onto state: “Your start date will be upon the grant of the Employer Nomination (Class EN), Subclass 186 – Employer Nomination Scheme visa through the Subclass 457 Transitional Stream.” … “The contract will be for a minimum of three (3) years, with an option to renew for a further period by mutual agreement.”

5. The Department's records show that Mr Singh was granted a subclass 457 visa on 24 June 2014 which was valid until 24 June 2018.

6. The Tribunal approved the relevant nomination by North East Region Training Association Inc, file number 1716187, on 2 March 2020.

7. On the basis of the evidence before it the Tribunal is satisfied that:

   ·the position to which the application relates, International Student Liaison Officer, is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3);

   ·Mr Singh was identified as the subclass 457 visa holder in the nomination by North East Region Training Association Inc;

   ·at the time of the current visa application North East Region Training Association Inc operated an education and training organisation trading as Morley Training Centre which is still operating;

   ·the position is the same position as that in the visa application declaration made by the applicant;

   ·the nomination of Mr Singh by North East Region Training Association Inc has not been withdrawn;

   ·the position is still available to the applicant; and

   ·the nomination of Mr Singh by North East Region Training Association Inc was approved on 2 March 2020, and this approval date is not more than six months before the visa application was made.

8. I find 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 in accord with cl.186.223.

9. The secondary applicants were refused on the basis that the primary applicant did not satisfy the primary criteria. As the Tribunal has found that the primary applicant satisfies cl.186.223, it is appropriate that the secondary applicants’ applications are reconsidered against the secondary criteria.

10. Therefore, cl.186.223 is met.

CONCLUDING PARAGRAPH

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

DECISION

1. The Tribunal remits the applications 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.

George Hallwood
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.