Thapa (Migration)

[2018] AATA 5060

Thapa (Migration) [2018] AATA 5060 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Selika Thapa

CASE NUMBER:  1715781

DIBP REFERENCE(S):  BCC2016/3441197

MEMBER:Ian Berry

DATE:17 July 2018

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:

●Cl. 186.223 of Schedule 2 to the Regulations        

Statement made on 17 July 2018 at 1:52pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – nominator position – Marketing and Sales manager – relevant nomination approved – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 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. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 186.223(2) of Schedule 2 to the Regulations because the associated nomination for the position was not approved.

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 1 applicant. Other members of the family unit, if any, who are also visa applicants need to satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of 1 of 3 alternative visa streams: The Temporary Residence Transition stream (as in this application), the Direct Entry stream, or the Agreement stream.

4. The applicant (Ms Thapa), is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Marketing and Sales Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because Ms Thapa did not meet clause 186.223(2) of Schedule 2 to the Regulations because the associated nomination for the position was not approved.

6. Ms Thapa appeared before the Tribunal on 22 June 2018 to give evidence and present arguments. She was represented by her migration agent. She was the only person to give evidence.

7. 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 meets cl. 186.223(2).

   Nomination of a position

9. Clause 186.223 requires that for an applicant 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.  For those purposes, the applicant must have been identified in the nomination as the relevant UC 457 visa holder, and the position must be the 1 that was the subject of the declaration that was required to be made as part of the current visa application.  Additionally, the nomination must be approved.

10. Louenhide Pty Ltd identified the applicant as the UC 457 visa holder for the position of ‘sales and marketing manager’ (ANZSCO 131112). Because of the Department's refusal of Ms Thapa's employer's nomination, the visa was refused.

11. On 26 May 2017, the Department refused to approve the nomination.  The result was that the applicant’s visa application was refused.

12. Louenhide Pty Ltd applied for review of the Department’s decision not to approve the nomination in respect of the applicant.  On 4 July 2018, the Tribunal set aside the Department’s decision made a decision to approve the associated nomination.

13. As the relevant nomination has now been approved, the Tribunal finds that the applicant meets cl.186.223(2) of Schedule 2.

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

    DECISION

15. 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 186.223 of Schedule 2 to the Regulations.

    Ian Berry
    Member