Uppal (Migration)

[2019] AATA 1263

Uppal (Migration) [2019] AATA 1263 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pardeep Kaur Uppal
Mr Amritpal Singh Uppal
Miss Sahajleen Kaur Uppal
Master Hargunjit Singh Uppal

CASE NUMBER:  1620857

HOME AFFAIRS REFERENCE(S):           BCC2016/1350462

MEMBER:Susan Trotter

DATE:11 January 2019

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223(2) of Schedule 2 to the Regulations.

Statement made on 11 January 2019 at 4:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant – nomination refused – decision set aside – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 186.223, 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 and Border Protection (the Minister) on 2 December 2016 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 4 April 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 Labour Agreement stream.

4. In the present case, the first-named applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant (General) for Menon & Associates Pty Ltd. The Temporary Residence Transition stream, prior to 18 March 2018, enabled Subclass 457 visa holders who had worked for their employer for the past two years to apply for a permanent visa where the employer had offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the first-named applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination. The delegate found that the nomination by Menon & Associates Pty Ltd had been refused on 31 October 2016 and that accordingly the first-named applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole.

6. The delegate also found that the other applicants (identified as the first-named applicant’s husband and children in the visa application) could not be granted Subclass 186 visas, as they did not meet the secondary visa criteria (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 7 December 2016.

8. In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it without proceeding with a hearing.

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

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. Clause 186.223, as applicable in this case, is set out in full in the attachment to this decision. Clause 186.223(2) is one of the essential criteria that must be met. It requires that the position to which the application relates to be 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.

13. Records of the Department of Home Affairs[1] (the Department) indicate that the first-named applicant’s employer, Menon & Associates Pty Ltd, made an application to have the position of Accountant (General) approved, with the first-named applicant as the nominee, with the Department on 4 April 2016. The nomination application was refused on 31 October 2016 and Menon & Associates Pty Ltd applied to the Tribunal seeking review of the decision on 15 November 2016.

    [1] Previously the Department of Immigration and Border Protection

14. On 11 January 2019, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Menon & Associates Pty Ltd.

15. Therefore, cl.187.223(2) is now met in relation to the first-named applicant.

16. As the other named applicants applied on the basis of each being a member of the family unit of the first-named applicant, their applications will be determined by reference to the outcome of the first-named applicant’s application on remittal to the Department for reconsideration.

    Conclusion

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

18. Consistent with paragraph 8.2 of the Tribunal’s President’s Direction – Conducting Migration and Refugee Reviews (30 June 2015), the Tribunal has restricted its consideration to the issue the subject of the delegate’s adverse decision.

    DECISION

19. 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 criterion for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223(2) of Schedule 2 to the Regulations.

    Susan Trotter
    Member

    
    

    ATTACHMENT

    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.