VIRPAL SINGH (Migration)

[2018] AATA 3922

VIRPAL SINGH (Migration) [2018] AATA 3922 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  VIRPAL SINGH
Mrs RAPINDER KAUR
Master AADILVIR SINGH MEHROK

CASE NUMBER:  1710209

HOME AFFAIRS REFERENCE(S):           BCC2016/2009334

MEMBER:Jennifer Cripps Watts

DATE:4 September 2018

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(2) of Schedule 2 to the Regulations.

Statement made on 04 September 2018 at 4:04pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Cook – nomination approved on review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 and Border Protection on 2 May 2017 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 10 June 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 (the applicant) is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Cook – ANZSCO 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because his application was not the subject of an approved nomination, that being the nomination by A &S Sharma Pty Ltd that was refused by the delegate on 27 March 2017.

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

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 position to which the application relates is the subject of an approved nomination:  cl.186.223(2).

9. An application for Employer Nomination (Class EN) (subclass 186) visa was lodged under the Temporary Residence Transition (TRT) Stream by Mr Virpal Singh on 10 June 2016 for the position of Cook – ANZSCO 351411.

10. The nomination application by A & S Sharma Pty Ltd, relating to Mr Virpal Singh’s 2016 subclass 186 visa application, was refused on 27 March 2017.  The applicant was invited by the delegate to comment on this, but he did not respond (within 28 days).  The delegate, justifiably on the available evidence, found that the applicant did not meet cl.186.223(2) and the subclass 186 visa was refused.

11. On 4 September 2018, the applicant’s representative informed the Tribunal that the (same) employer lodged a subsequent nomination application after the previous nomination was refused in March 2017.  He provided the Tribunal with a copy of the Department’s notification that the subsequent nomination, naming Virpal Singh as the nominee in the occupation of Cook ANZSCO 351411, was approved on 4 June 2018.  It is stated in the letter that the nominee, if he has not already done so, may lodge an application for permanent residence within six months of the date of the 4 June 2018 letter or before the expiry of their current visa (whichever is sooner).

12. The Tribunal relies on the Department’s 4 June 2018 nomination approval letter and is satisfied that the applicant meets cl.186.223(2).

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

    DECISION

14. 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(2) of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    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.