VARINDER SINGH (Migration)

[2019] AATA 3099

VARINDER SINGH (Migration) [2019] AATA 3099 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Varinder Singh
Ms Mandeep Kaur
Master Sukhraj Singh

CASE NUMBER:  1812119

HOME AFFAIRS REFERENCE(S):          BCC2017/1381152

MEMBER:Katie Malyon

DATE:1 May 2019

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(1) of Schedule 2 to the Regulations; and

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

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 01 May 2019 at 1:24 pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry cook ANZSCO 351112 –  nomination not approved – tribunal approved nomination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 5.19(3), 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 27 April 2018 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 13 April 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 3 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 - Indian national Mr Varinder Singh - is seeking the visa in the Temporary Residence Transition stream to continue working in the nominated position of Pastrycook ANZSCO 351112 with his nominating employer Ayu & Karina Pty Ltd (the Company). The delegate refused to grant the visas on the basis Mr Singh did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by the Company was refused. The provisions of cl.186.223 are set out in the Attachment to his decision.  

5. Mr Singh and the second named applicant, his wife Ms Mandeep Kaur, appeared before the Tribunal on 1 May 2019 to give evidence and present arguments at a combined hearing with the Tribunal’s hearing of the delegate’s refusal of the Company’s nomination (Matter

   
   

   No. 1807947).  The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

6. On 1 May 2019, in an oral decision, the Tribunal approved the related nomination application made under r.5.19(3) of the Regulations by the Company in respect of the position of Pastrycook ANZSCO 351112 for nominee Mr Singh. Accordingly, cl.186.223(2) of Schedule 2 to the Regulations is now met by Mr Singh.

7. Given this finding, the appropriate course is to remit Mr Singh’s Subclass 186 visa application to the Minister to consider remaining criteria for grant of the visa.

8. Ms Kaur applied for her Subclass 186 visas on the basis of being a member of the family unit of Mr Singh.  As such, her application will be determined by reference to the outcome of Mr Singh’s application on remittal to the Department for reconsideration.

9. The third named applicant, the couple’s 3 year old son Master Sukhraj Singh, also applied for his Subclass 186 visas on the basis of a being member of the family unit of Mr Singh.  However, he was not in Australia at the time of the visa application nor at the time of lodgement of the review application with the Tribunal.  In these circumstances, and as discussed with Mr Singh and his wife at the hearing, the Tribunal has no jurisdiction in relation to their son Master Singh. 

   DECISION

10. The Tribunal remits the applications 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(1) of Schedule 2 to the Regulations; and

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

11. The Tribunal has no jurisdiction in relation to the third named applicant.

    Katie Malyon

    
    Member

    ATTACHMENT  – Extract from the Migration Regulations 1994

    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.

    oOOo