Thapaliya (Migration)

[2020] AATA 6138

Thapaliya (Migration) [2020] AATA 6138 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sulav Thapaliya
Mrs Sushma Pathak Thapaliya
Miss Savarna Thapaliya
Miss Sharika Thapaliya

CASE NUMBER:  1906188

HOME AFFAIRS REFERENCE(S):          BCC2017/2336049

MEMBER:Warren Stooke AM

DATE:28 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 28 October 2020 at 10:48am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Customer Service Manager – no approved nomination – members of the family unit – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 5.19

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 25 February 2019 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 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 (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 Customer Service Manager – ANZSCO Code: 149212.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by Ganadhi Pty Ltd for the position of Customer Service Manager had been refused by a delegate for the Department.

6. The applicants appeared before the Tribunal on 27 October 2020 to give evidence and present arguments.

7. The applicant stated that he understood that the application was refused by the delegate because something was wrong on his sponsor side.

8. The applicants were represented in relation to the review by their registered migration agent.

9. The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with the application for review.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in the present case are whether the first named applicant is the subject of an approved nomination and whether the second and third named applicants meet the criteria for the visa as members of the family unit of a person who have satisfied the primary criteria for the grant of the visa.

12. The Tribunal explained the requirement of cl.186.223, which requires that the ‘Minister has approved the nomination’ and asked the applicant if he had an approved nomination. The applicant responded: “At the moment, I don’t have”.

13. The Tribunal restated to the applicant that it is a requirement that the Minister has approved the nomination, which based upon the evidence he had given it appeared the applicaNt did not have an approved nomination.

    Nomination of a position

14. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. 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.

15. 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.

16. On the basis of the evidence provided by the applicant that he does not have an approved nomination, the Tribunal is satisfied that the requirements of cl.186.223 have not been met.

17. Therefore, cl.186.223 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

19. On the basis that the primary applicant has not met the criteria required to be granted a 186 visa, it thereby follows that the secondary applicants are not members of a family unit that has met the requirements to be granted a 186 visa and accordingly have not met the requirements of the regulations to be granted a 186 visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Warren Stooke AM
    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.