Singh (Migration)

Singh (Migration) [2018] AATA 5328 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Randhir Singh
Mrs Navreet Kaur
Miss Mehreen Kaur
CASE NUMBER:  1709254
HOME AFFAIRS REFERENCE(S):           BCC2016/3122408
MEMBER:Alan McMurran
DATE:29 October 2018
PLACE OF DECISION:  Sydney
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

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa
·Cl.186.311 of Schedule 2 to the Regulations.

Statement made on 29 October 2018 at 4:14pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination application now approved by the Tribunal – no adverse information – position available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 April 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 20 September 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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 a citizen of India and is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook ANZSCO 351411.
The delegate refused to grant the visas because the first-named applicant did not meet cl.186.223 of Schedule 2 to the Regulations.
The applicants appeared before the Tribunal on 29 October 2018 to give evidence and present arguments.
The hearing was conducted as a combined hearing with the review of the application by the sponsor and was conducted by video from Gladstone with the assistance of an interpreter in the Punjabi and English languages. The form of the hearing was explained to the applicant on commencement and the applicant indicated he understood the process and commented when asked to do so, and answered questions from the Tribunal in the Punjabi language.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant can satisfy subregulation 186.223.
The issue for the second and third-named applicants is whether they can satisfy subregulation 186.311, which is the requirement that those applicants need to be members of the family unit of the primary applicant who holds a subclass 186 visa, granted on the basis of satisfying the primary criteria for the grant of the visa.
Nomination of a position
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 a nomination application under regulation 5.19 in the Temporary Residence Transition stream and which application 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.
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.
Approval of Nomination
On 26 April 2017, the Department delegate refused the visa application by the applicant on the basis the nomination by the applicant’s sponsor had been refused (on 10 March 2017). As a consequence, there was no approval by the Minister of a nomination application upon which the applicant could rely for his visa, and the visa applicant did not satisfy regulation 186.223 (2).
On 29 October 2018, following the hearing of the review of the nomination decision by the Tribunal, the Tribunal set aside the nomination decision and found that the requirements under regulation 5.19 (3) were met by the sponsor.
Adverse information
The term adverse information includes information that a person or a person associated with the person has been found guilty by a court of an offence under a Commonwealth, State or Territory law, or acted in contravention of such a law, or been the subject of administrative action including a warning for a possible contravention, or as a person under investigation and subject to disciplinary action.
The Tribunal has had regard to the information on the Tribunal’s file for both the applicant and the sponsor, and on the Department’s files. The Tribunal has also had regard to the information obtained at the combined hearing on 29 October 2018. The Tribunal asked questions of the applicant and the sponsor at the combined hearing, and both confirmed there was nothing of which they were aware which might constitute adverse information.
The Tribunal has had regard to the Department’s files and its own enquiries based on the applicants file information, and is satisfied there is no adverse information known to the Department or the Tribunal in those files or the information made available for the hearing.
Position Available
Information before the Tribunal confirms that the applicant has entered into an employment contract with the sponsor and which contract is subject to the approval for the grant of a Regulation 186 visa in the Temporary Transition Stream in favour of the applicant.
At the hearing, the sponsor’s director gave evidence and confirmed the position was available for at least the next 2 years, and that the applicant had been performing in the role as a cook for the past 3 years, since February 2014. The applicant also confirmed he was willing to accept continuing in the role and intended and wished to do so.
The Tribunal examined the financial circumstances of the employment and the sponsor’s financial commitments and the Tribunal was satisfied that the position exists and remains available to the applicant.
The Tribunal further notes that the application for the visa was made no more than 6 months following the approval of the nomination.
For the above reasons, the Tribunal finds the provisions of cl.186.223 are met.
Secondary Applicants
The Tribunal finds that the second and third-named applicants are respectively the spouse and child of the applicant.
Subregulation 186.311 requires that the applicants are members of the family unit of the primary applicant who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with the primary applicant.
The Tribunal finds the second and third-named applicants are parties to a combined application with the primary applicant.
The secondary applicants therefore meet the criteria in regulation 186.311(a) and (b).
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
DECISION
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
The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the second and third-named applicant meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa
·cl.186.311 of Schedule 2 to the Regulations.
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.

[2018] AATA 5328

29 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal