Singh (Migration)

[2018] AATA 2028

Singh (Migration) [2018] AATA 2028 (24 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhbir Singh
Mrs Gurpreet Kaur

CASE NUMBER:  1702010

DIBP REFERENCE(S):  BCC2016/1030784

MEMBER:Hugh Sanderson

DATE:24 April 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.

Statement made on 24 April 2018 at 1:36pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager – Subject of an approved nomination – 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 Immigration and Border Protection on 18 January 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 March 2016. 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 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 customer service manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination. The reason the applicant was not subject of an approved nomination was that the application for approval of the nomination lodged by CTM Bread on the Run Pty Ltd had been refused by the Department.

6. CTM Bread on the Run Pty Ltd applied to the Tribunal for a review of the decision refusing the nomination application. The Tribunal on 23 April 2018 set aside the Department’s decision and substituted a decision approving the nomination. Accordingly, the applicant is now the subject of an approved nomination.

7. The Tribunal has proceeded to a decision in the matter without the need for a hearing. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is subject of an approved nomination.

   Nomination of a position

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

10. 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.

11. The applicant applied for the visa on the basis of his being employed as a customer service manager by his sponsor, CTM Bread on the Run Pty Ltd. This is the employer and sponsor he was working for and the occupation he was working in and identified when he was granted the Subclass 457 Temporary Work (Skilled) visa.

12. The Tribunal on 23 April 2018 set aside the decision of the Department and substituted a decision approving the nomination application of CTM Bread on the Run Pty Ltd. The evidence presented to the Tribunal at the hearing of CTM Bread on the Run Pty Ltd was that there was no intention to withdraw the application and the position is still available to the applicant. There is no information before the Tribunal that there is any adverse information known to immigration about the applicant or any person associated with the applicant.

13. For the above reasons the Tribunal finds that the criteria in 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.

14. As the first named applicant meets this criteria for the grant of the application, the application of the second named visa applicant is remitted to be reconsidered in full.

    DECISION

15. 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.

    Hugh Sanderson
    Member