1508718 (Migration)

[2016] AATA 4567

1508718 (Migration) [2016] AATA 4567 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chentankumar Morarilal Sharma
Ms Shitalben Dulkubhai Sharma
Miss Dipixaben Nimeshbhai Maheta
Miss Prapti Sharma

CASE NUMBER:  1508718

DIBP REFERENCE(S):  BCC2014/2718577

MEMBER:Rania Skaros

DATE:24 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2016 at 11:31am

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 15 June 2015 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 14 October 2014. 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 the Direct Entry stream, to work in the nominated position of Minister of Religion. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination in relation to him had not been approved.

6. The applicants appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.233.

   Nomination of a position

10. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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 person who will employ the applicant is the person who made the nomination

    ·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 was nominated in the position of Minister of Religion by Shri Shiva Mandir Ltd. The Department refused that nomination and Shri Shiva Mandir Ltd applied to the Tribunal for review. On 15 August 2016 the Tribunal affirmed the Department’s decision not to approve the nomination.

13. On 16 August 2016 the Tribunal wrote to the review applicant in accordance with the requirements of s.359A inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal affirming the Department’s decision not to approve the nomination of the position made by Shri Shiva Mandir Ltd.  

14. On 29 August 2016 the Tribunal received submissions and various documents from the applicants’ representative. The documents included copies of submissions made to the Department of Immigration requesting the decision in relation to the nomination made by Shri Shiva Mandir Ltd be vacated.

15. It was submitted that the information requested by the Tribunal for nomination was ready and available but that unfortunately it was not submitted within the period prescribed by the Tribunal. A request was made for the Tribunal to postpone making its decision on the review until the Department of Immigration has responded to the request relating to the nomination. It was also submitted that a judicial review application in relation to the nomination would be lodged and a request was made for the Tribunal to delay making its decision until the matter relating to the nomination has been finally determined.

16. At the hearing the applicant provided background evidence about his employment as a Hindu priest and his family’s circumstances in Australia. He stated that he and his family wish to settle down and that his employer had agreed to extend his contract.  The Tribunal has considered the applicant and his family’s circumstances, however, as explained to him at the hearing, it has no discretion to take into account extenuating circumstances and that the issue it must determine in his case is whether the nomination in relation to him made by his nominating employer has been approved.

17. The representative informed the Tribunal that a judicial review application has been lodged and that the first directions hearing would not be until 18 December 2016. The Tribunal explained to the representative that given the review of the decision relating to the nomination has already been considered by the Tribunal that matter has already been finalised, then the matter has been finally determined within the meaning of s.5 of the Act. The Tribunal acknowledged that a judicial review application has been lodged in relation to that matter, however the first directions hearing is not until December 2016 and it is likely the matter will take a considerable period of time to resolve before the court. The Tribunal explained to the applicant that given the length of time the matter may take to resolve before the court and given the Tribunal’s obligation to make efficient decisions, in the circumstances, it did not consider it appropriate to delay making its decision. 

18. The Tribunal has also considered the representative’s request to delay making a decision until the Department has had an opportunity to consider the request to vacate the decision in relation to the nomination. The Tribunal explained to the applicant while it was not prepared to wait indefinitely for this process, it would agree to provide a period of one month, until 19 October 2016, for the nominator to communicate with the Department regarding the request to vacate the decision. The Tribunal explained to the representative that they should inform the Tribunal by 19 October 2016 of the outcome of the request and that if the Tribunal did not receive any correspondence from them it would proceed to a decision on the information before it. The representative indicated that this was understood.

19. At the time of this decision the Tribunal has not received any further correspondence from the applicant or the representative, in the circumstances the Tribunal has decided to proceed to a decision on the information before it.

20. As indicated above, the applicant was nominated in the position of Minister of Religion by Shri Shiva Mandir Ltd. At the time of this decision the nomination has not been approved, consequently, the applicant does not meet c.186.233(3).

21. Given the above, the Tribunal finds that cl.186.233 is not met.

22. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

23. The secondary applicants are members of the first named applicant’s family unit. As the Tribunal has found that the first named applicant does not meet the criteria for the grant of the visa, in the circumstances, the Tribunal must also affirm the decision in relation to the secondary applicants.

    DECISION

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

    Rania Skaros
    Member