ACHARYA (Migration)

[2019] AATA 5466

ACHARYA (Migration) [2019] AATA 5466 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SUMIT ACHARYA
Miss SUMNIMA ACHARYA
Master NISUM ACHARYA
Miss NISUTA ACHARYA
Mrs NIMITA ACHARYA

CASE NUMBER:  1725282

HOME AFFAIRS REFERENCE(S):          BCC2016/4118595

MEMBER:Karen McNamara

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2019 at 1:14pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of approved nomination of position – employer’s nomination application refused – refusal affirmed on review – no response to Tribunal’s s 359A letter – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

CASE

Hasran v MIAC [2010] FCAFC 40

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 28 September 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 6 December 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 Mr Sumit Acharya (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Baker (ANZSCO 351111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on the 7 July 2017, the nomination lodged by TEJ Foods Pty Ltd, was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicants applied to the Tribunal on 17 October 2017 for review of the delegate’s decision.

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 applicants meet the requirements of cl.186.223 of Schedule 2 to the Regulations.

   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. On the 18 November 2019, the Tribunal affirmed the decision refusing the approval of the nomination made by TEJ Foods Pty Ltd in respect of the applicant.  As the nomination has been refused, regulation 186.223(2) is not met.

13. On 18 November 2019, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the delegate’s decision not to approve the nomination made by TEJ Foods Pty Ltd, which the Tribunal explained was relevant to  Mr Acharya meeting cl.186.223(2) requiring the nomination to be approved.  As the nomination has been refused, regulation cl.186.223(2) is not met.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 2 December 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

15. The review applicants have not provided the comments within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

16. Having considered the evidence before it, the Tribunal finds that the primary applicant does not satisfy cl 186.223(2). Therefore, cl.186.223 is not met.

17. As the primary applicant is found not to have met the prescribed criteria for a

    Subclass 186 (Employer Nomination Scheme) visa, the secondary applicants Miss Sumnima Acharya,

    
    

    Master Nisum Acharya, Miss Nisuta Acharya and Mrs Nimita Acharya as a member of the applicant’s family unit therefore, are also unable to satisfy the criteria for this visa class.

18. As such, the applicants do not meet an essential criterion for the grant of a subclass 186 visa.

19. The applicants have 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.

    DECISION

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

    Karen McNamara
    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.