Akula (Migration)

[2018] AATA 2037

Akula (Migration) [2018] AATA 2037 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Uday Akula
Mrs Nandhini Chetti
Master Akiranandan Patel Akula

CASE NUMBER:  1712185

DIBP REFERENCE(S):  BCC2016/3775745

MEMBER:Katie Malyon

DATE:18 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2018 at 9:30 am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – ICT Customer Support Officer – No approved nomination – Not a subject of an approved nomination – Decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.233, 186.311

CASES
Singh v MIBP [2017] FCAFC 105

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 23 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 11 November 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mr Uday Akula (the first named applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ICT Customer Support Officer.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because Mr Akula did not meet cl.186.223 of Schedule 2 to the Regulations since the nomination application for the position of ICT Customer Support Officer in respect of Mr Akula lodged by his employer Vensys Australia Pty Ltd (the Company), being the nomination referred to in 186.223(1) of Schedule 2 to the Regulations, was refused by the Department on 20 April 2017. A copy of the delegate’s decision was provided to the Tribunal.

   Background

6. Mr Akula applied for a Subclass 186 visa on the basis of being nominated by his employer and sponsor, the Company.  The second named applicant is his wife and the third named applicant is the couple’s 1½ year old son.  Mr Akula’s wife and son applied for their visas on the basis of being members of Mr Akula’s family unit.

7. As indicated in the delegate's decision, the application for approval of the nominated position of ICT Customer Support Officer in respect of Mr Akula made by the Company was refused by the Department due to its failure to meet criteria in r.5.19(3) of the Regulations. The Company sought review of the Department’s refusal of its nomination application in related matter number 1710086. The Tribunal made a decision on 7 March 2018 to affirm the Department’s decision not to approve the Company’s nomination in respect of the position of ICT Customer Support Officer for Mr Akula.

8. On 20 March 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed the applicants that it had affirmed the Department’s decision to refuse the nomination application made by the Company in respect of Mr Akula. As a result, the position to which his Subclass 186 visa application relates could not meet criteria in cl.186.223 of Schedule 2 to the Regulations as there is no approved nomination by the Company in respect of him and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

9. The applicants’ representative requested an extension of time in which to respond to the Tribunal’s s.359A letter having regard to the fact that Mr Akula had just returned from overseas. The Tribunal afforded Mr Akula another 14 days in which to respond. At the end of those 14 days, the applicants’ representative advised that his client had no further information to provide to the Tribunal.

10. The Tribunal invited the applicants to a hearing on 15 May 2018.  The applicants’ representative requested an adjournment so that Mr Akula could gather further documentation including from the Company.  The Tribunal declined the request for an adjournment.  In anticipation of the hearing, the Tribunal forwarded to Mr Akula’s representative a copy of the applicants’ Subclass 186 visa application with a view to discussing the application with them during the hearing.

11. Mr Akula appeared before the Tribunal on 15 May 2018 by way of teleconference to give evidence and present arguments.  His wife made a brief appearance but then excused herself to look after the couple’s son.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Approved nomination of a position

13. Clause 186.223 of the Regulations requires that, for applicants in the Temporary Residence Transition stream, the position to which their 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 mentioned in paragraph 1114B(3)(d) of Schedule 1 of the Regulations which was required to be made as part of the Subclass 186 visa application. It is also a requirement that the Minister has approved the nomination. The provisions of cl.186.223 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

14. At the commencement of the hearing, Mr Akula told the Tribunal that he was aware his review application was proceeding although the Tribunal had affirmed he Department’s decision to refuse the Company’s nomination application.  He said the Company informed him its nomination application had been declined by the Tribunal because of its failure to provide paperwork including evidence of meeting training benchmarks and accounting documentation.  Mr Akula said he has been working for the Company for the last 5 years and was not expecting to have any problems with the Company’s nomination.  He added that his boss was sick at the time of the Tribunal’s hearing (in relation to review of the nomination refusal) but was unsuccessful in getting an extension of time to provide requested documentation.  The Tribunal noted that it was not able to comment on the reasons for its decision in relation to affirming refusal of the Company’s nomination as this was a matter for the Company.  It observed, however, that documentation in relation to training benchmarks related to the period during which the Company was most recently approved as a sponsor and so should have been lodged in support of the nomination when it was lodged with the Department in November 2016.  Furthermore, accounting documentation including Business Activity Statements is required to be lodged with the Australian Taxation Office on a quarterly basis and so copy documentation should have been readily available.  Mr Akula acknowledged the Tribunal’s observations in this regard.

15. Mr Akula confirmed he had received a copy of his visa application from his representative.  The Tribunal discussed with Mr Akula statements made in his Subclass 186 visa application lodged with the Department.  It noted to the nomination transaction reference number (TRN) EGOCY61O5K on the first page of his Subclass 186 visa application and the declaration made by him on pages 15-16 of the application in which he declares that:

    ‘the position to which the application relates is a position nominated under regulation 5.19 … by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.  (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection.)’   

    Mr Akula acknowledged he had made the declaration as set out in his Subclass 186 visa application. 

16. The Tribunal referred to the decision of the Full Federal Court of Australia decision in Singh v MIBP [2017] FCAFCA 105 of 14 July 2017 (Singh’s case). The Tribunal noted that, in Singh’s case, the Court held the words in cl.186.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, the scheme is a ‘once off’ process.[1] The Court also held that the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted. Further, the Court observed that even a later nomination in respect of the same position, made by the same employer, could not be relied upon to meet the cl.186.223 criteria because the new nomination would not be the one in relation to which the visa applicant’s paragraph 1114B(3)(d) declaration was made.[2] In passing, the Tribunal notes that although the Court in Singh’s case was commenting on cl.187.233 of Schedule 2 to the Regulations (regarding a Regional Sponsored Migration Scheme Subclass 187 visa) the provisions are identical to those in cl.186.223 of Schedule 2 to the Regulations which deal with an Employer Nomination Scheme Subclass 186 visa.

    [1]     Singh v MIBP [2017] FCAFCA 105, Mortimer J at [90].

    [2] Ibid, at [88]-[89].

17. At the hearing, the Tribunal confirmed that, having reviewed the Department's file, Mr Akula made the requisite paragraph 1114B(3)(d) declaration in his Subclass 186 visa application: this was necessary for the purposes of making a valid application. Mr Akula acknowledged that he had made the necessary declaration in his application. The declaration in Mr Akula's Subclass 186 visa application relates to the Company's nomination application made 11 November 2016 for the position of ICT Customer Service Officer with TRN EGOCY61O5K. As set out in the Tribunal’s letter issued pursuant to s.359A of the Act and sent to the applicants on 23 March 2018, this was the nomination refused by the Department on 20 April 2017 and that decision was affirmed by the Tribunal on 20 March 2018. In its letter, the Tribunal noted that, as explained in Singh’s case, it is a ‘once off’ process.

18. On the evidence before it, the Tribunal is not satisfied that the nomination application associated with the position was approved. Therefore, Mr Akula does not meet cl.186.223(2) of Schedule 2 to the Regulations.

19. It follows that the second named applicant and the third named applicant do not meet the requirements of cl.186.311 of Schedule 2 to the Regulations of being a member of the family unit of a person who holds a Subclass 186 visa.

20. Mr Akula 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 either 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

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

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994

    Schedule 2

    Part 186 - Employer Nomination Scheme

    …
    
    

    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 (Temporary Work (Skilled)) 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.

    …

    oOOo