1833010 (Migration)

[2019] AATA 4647

1833010 (Migration) [2019] AATA 4647 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833010

MEMBER:Amanda Mendes Da Costa

DATE:23 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 September 2019 at 3:32pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry Cook – nomination refused – review application withdrawn – sufficient opportunity to respond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 186.233

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 26 October 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 11 February 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 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 Temporary Residence Transition stream, to work in the nominated position of Pastry Cook ANZSCO 351112.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the she did not have an approved nomination for her nominated occupation of Pastry Cook, which had not ceased.

6. The applicants appeared before the Tribunal on 29 August 2019 to give evidence and present arguments. This matter was originally listed as a combined hearing with the related nomination refusal case of [the company].  However, on 19 March 2019 the company withdrew its review application with the Tribunal.

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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the first named applicant meets the requirements of cl.186.223.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is 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.

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 first named applicant told the Tribunal that she commenced employment with the company in 2014 and originally worked at the company’s store in [Suburb 1].  In 2017 the first named applicant was transferred to the company’s [Suburb 2] store.  The employer suggested that the first named applicant and her husband invest in the company’s business.  They subsequently withdrew [money] from their mortgage account to invest in the business.  However, when the company refused to provide any documentation evidencing their investment, the first named applicant and her husband decided not to go ahead with their financial involvement in the business.

13. The first named applicant said that she had been a hard-working and contentious employee who worked six days per week.

14. In February 2019 the first named applicant left her employment with the company and commenced employment with a new employer.

15. The first named applicant conceded in her oral evidence that she does not currently have an approved nomination for her nomination position of Pastry Cook.

16. On 29 August 2019 the Tribunal wrote to the applicants pursuant to s359A of the Act, inviting the applicants to comment on or respond to the following information:

    [The company] lodged an application for approval of a nomination on9 February 2017, identifying the first named applicant as the nominee for the occupation of pastry Cook ANZSCO 351112.

    On 19 September 2018 the nomination application of [the company] was refused by a delegate of the Minister of the Department.  [The company] subsequently made an application to the Tribunal for review of the decision.  On 19 March 2019 the company withdrew its review application with the Tribunal.

17. The Tribunal advised the applicants that this information would be the reason or part of the reason for affirming the decision under review because it suggested that the first named applicant did not have an approved nomination. The Tribunal further advised that if an nomination of an occupation in association with the visa application had not been approved, the requirements of cl186.223 of Schedule 2 to the Regulations are not met and the Tribunal may find that the first named applicant does not meet the criteria for the grant of the visa.

18. The Tribunal gave the applicants until 12 September 2019 to provide any response to its s359A letter.

19. On 12 September 2019 the applicants sent an email to the Tribunal, seeking an extension of time until 4 October 2019 in which to comment on or respond to the Tribunal’s s.359A letter.  On that date the Tribunal informed the applicants that it had granted them an extension until 19 September 2019.  The applicants sought a further extension of time on 19 September 2019 for a period of two to three weeks.

20. On 20 September 2019 the Tribunal wrote to the applicants advising them that the Tribunal considered that it had given them sufficient opportunity to put their case to the Tribunal and had previously granted the applicants an extension of time in which to respond to its s.359A letter.

21. Based on the oral and documentary evidence before it, the Tribunal is not satisfied that the applicants have met the requirements of cl.186.223.

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

23. In relation to the second, third and fourth named applicants, the Tribunal finds that as the first named applicant does not satisfy the criteria for grant of an Employer Nomination (Permanent) (Class EN) visa, the second, third and fourth named applicants do not meet the criteria for Subclass 186 visas as the members of the family unit of a person who has satisfied the primary criteria.

    DECISION

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

    Amanda Mendes Da Costa
    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.