TAMANG (Migration)

[2018] AATA 2369

TAMANG (Migration) [2018] AATA 2369 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MAN BAHADUR TAMANG
Ms MENDHO TAMANG

CASE NUMBER:  1728235

DIBP REFERENCE(S):  BCC2016/2050839

MEMBER:Karen McNamara

DATE:22 May 2018

PLACE OF DECISION:  Sydney

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.186.233 of Schedule 2 to the Regulations.

Statement made on 22 May 2018 at 12:37pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Nomination previously refused by delegate – Nomination subsequently approved by Tribunal – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.233(3)

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 26 October 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 15 June 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, Mr Man Bahadur Tamang, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination to which the position relates was not approved.

6. 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 meets the requirements of cl.186.233.

   Nomination of a position

8. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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 person who will employ the applicant is the person who made the nomination

   ·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 nominating employer, Sasman Group Pty Ltd applied to the Department for approval of a nomination in relation to the position of Cook. That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

11. Sasman Group Pty Ltd applied for a review of the decision not to approve the nomination (AAT Case No. 1719534). On 22 May 2018, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

12. Based on evidence before it, the Tribunal is satisfied that;

    ·The person who will employ the applicant in the nominated positon, (that is Sasman Group Pty Ltd) is the person who made the nomination.

    ·Sasman Group Pty Ltd’s nomination for the positon of Cook with Sasman Group Pty Ltd (trading as Café Martini) has been approved by the Tribunal and has not been subsequently withdrawn;

    ·Having regard to the information on the related Tribunal and Department files in respect of the nomination application, there is no evidence to suggest that there is adverse information known to Immigration about the nominator or a person associated with the nominator.

    ·The nominator advised at hearing the positon is still available to Mr Tamang; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination of the position was approved.

13. On the basis of the above, the Tribunal finds that the requirements of cl.186.233 are met.

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

15. Mrs Mendho Tamang applied on the basis of being a member of the family unit of the first named applicant, Mr Man Bahadur Tamang.  Mrs Mendho Tamang’s application will be determined by reference to the outcome of Mr Man Bahadur Tamang’s application on remittal to the Department for reconsideration.

DECISION

1. 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.186.233 of Schedule 2 to the Regulations.

   Karen McNamara
   Member