THAPA (Migration)

[2021] AATA 1474

THAPA (Migration) [2021] AATA 1474 (23 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bal Bhadra THAPA
Mrs Narbada THAPA MAGAR
Ms Nikita THAPA

CASE NUMBER:  1819726

HOME AFFAIRS REFERENCE(S):          BCC2017/2336007

MEMBER:Wan Shum

DATE:23 April 2021

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 23 April 2021 at 2:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination approved –subject of an approved nomination – position is still available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
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 Home Affairs on 3 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 June 2017. 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 (Cth) (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.

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 Cook. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least two years, and that employer has offered them a permanent position in the same occupation. Relevantly in this case, cl.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). An application for approval for a position was made by Balence Pty Ltd on 30 June 2017 but it was not approved.

5. As a consequence, the delegate in this matter refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

6. The employer sought review of the decision not to approve the nomination and the applicant also sought review in relation to the visa refusal decision.

7. The Tribunal approved the nomination relevant to this matter on 23 April 2021.

8. The Tribunal will now consider whether the applicant meets cl.186.223 at the time of its decision.

9. For the purposes of cl.186.223, 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. The Tribunal has sighted the application made by the employer for the nomination which sought to meet the requirements of r.5.19(3) and identified the applicant as the 457 visa holder. The letter acknowledging receipt of the application set out the TRN (or nomination transaction number) of EGOF2S8D4L. The details of the nomination given on the visa application match that nomination application and the applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c). The Tribunal finds that the requirements of cl.186.223(1) are satisfied.

10. In addition, cl.186.223 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 is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore, the Tribunal finds that the application was not made more than six months after the nomination of the position was approved. The nomination has not been withdrawn.

12. There is nothing before the Tribunal to indicate that there is adverse information (as defined) known to Immigration about the nominator or person associated with the nominator. 

13. Therefore, all of the requirements of cl.186.223 have been met.

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

    DECISION

15. 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.

    Wan Shum
    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.