VORA (Migration)

[2017] AATA 2261

VORA (Migration) [2017] AATA 2261 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Susmit Maheshkumar VORA
Ms Shiborgy Prafulbhai NAYAK

CASE NUMBER:  1705911

DIBP REFERENCE(S):  BCC2016/2292125

MEMBER:Catherine Carney-Orsborn

DATE:17 October 2017

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 17 October 2017 at 10:01am

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – No previous approved nomination – Nomination now approved

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cl 186.223, r 5.19(3)

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 on 21 March 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 to the Department of Immigration for the visas on 7 July 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 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 program or project administrator. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was no approved nomination.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

10. Clause 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). For those purposes, 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.

11. 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.

12. The applicant’s nominating employer, Vedant Consulting Pty Ltd, applied to the Department on 30 June 2016 for the approval of the position of program or project administrator. The Department refused to approve the nomination and the nominating employer applied to the Tribunal for review of that decision.

13. On 16 October 2017, the Tribunal set aside the Department’s decision and substituted a decision to approve the nomination in respect of the applicant.

14. On the evidence before it, the Tribunal is satisfied that:

    ·     the person who will employ the applicant was the nominator in the application for approval;

    ·     on the evidence before the Tribunal there is no adverse information known to Immigration about the nominator or a person associated with the nominator;

    ·     the visa applicant is identified as the holder of a subclass 457 visa in the nomination;

    ·     it has not been withdrawn and at the time of decision, the criteria for approval in r.5.19(3) continue to be met;

    ·      the position was the subject of the declaration that was required to be made as part of the current visa application;

    ·     the appointment 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.

15. Therefore, the Tribunal finds that the applicant meets cl.186.223.

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

    DECISION

17. 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.

    Catherine Carney-Orsborn
    Member