Thapa (Migration)

[2019] AATA 458

Thapa (Migration) [2019] AATA 458 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Elaakshi Dabra

CASE NUMBER:  1715781

DIBP REFERENCE(S):  BCC2016/3441197

MEMBER:Ian Berry

DATE:25 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

•  Clause 186.311 of Schedule 2 to the Regulations.

Statement made on 25 January 2019 at 9:16am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – secondary applicant – daughter of primary applicant – mother satisfies visa requirements – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.311

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 on 4 July 2017 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 October 2016.

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 (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit namely the applicant needs to satisfy the secondary criteria.

4. The applicant’s mother sought the visa in the Temporary Residence Transition stream, to work in the nominator position of Marketing and Sales Manager. This stream is designed for subclass 457 visa holders who have worked for their employer in the past two years, and the employer has offered this person a permanent position in the same occupation.

5. On 17 July 2018, the Tribunal made a decision remitting the mother’s application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that her application meets clause 186.223 of Schedule 2 to the Regulations. As the applicant, as the  daughter and member of the mother’s household, was not included in the 17 July 2018 order, the Tribunal now makes this order in respect of this applicant.

6. For the reasons set out in the decision made on 17 July 2018, the Tribunal has concluded that the matter should be remitted for reconsideration.

   DECISION

7. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

   ·           Clause 186.311 of Schedule 2 to the Regulations.

   Ian Berry
   Member