Amandeep Singh (Migration)

[2019] AATA 2693

Amandeep Singh (Migration) [2019] AATA 2693 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh
Ms Manpreet Kaur

CASE NUMBER:  1903548

HOME AFFAIRS REFERENCE(S):           BCC2017/3420546

MEMBER:Katie Malyon

DATE:16 May 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 16 May 2019 at 10:19 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Café or Restaurant Manager – nomination withdrawn – new nomination not applicable to review application – applicant not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.13, Schedule 1, para 1114B(3)(d), Schedule 2, cl 186.233

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 Home Affairs on 29 January 2019 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 19 September 2017.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for 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.

   Background

4. In the present case, the first named applicant – Indian national Mr Amandeep Singh – was nominated in the Direct Entry stream to fill the position of Café or Restaurant Manager ANZSCO 141111 with Aman Enterprises Pty Ltd (the Company).  However, the Company’s nomination was withdrawn on 28 December 2018.  As a result, the delegate refused the applicants’ Subclass 186 visa applications. 

5. The Tribunal wrote to the applicants on 2 April 2019 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 their Subclass 186 visa applications.

6. The Tribunal informed the applicants that the Company withdrew the nomination application which identified Mr Singh as the nominee and, consequently, there is currently no approved nomination in relation to Mr Singh. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.  The Court observed in Singh’s case that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet these criteria because the new nomination would not be the one in relation to which the primary visa applicant made the declaration in their visa application regarding the related nomination and provided the relevant transaction reference number. The declaration is required for the purposes of making a valid Subclass 186 visa application: para 1114B(3)(d) of Schedule 1 to the Regulations.

7. In its s.359A letter, the Tribunal requested the applicants provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. On 15 April 2019, Mr Singh wrote to the Tribunal and requested it ‘link’ the review application to his employer’s new nomination application. He added that his position, workplace and employer’s ABN remain the same.

   Hearing

8. The Tribunal invited the applicants to a hearing on 6 May 2019.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

9. At the commencement of the hearing, the Tribunal provided the applicants with a copy of their Subclass 186 visa application. It highlighted the transaction reference number of the related Company nomination provided by Mr Singh on the first page of the application. It also highlighted completion of the necessary Schedule 1 declaration on the penultimate page of the visa application.

10. Mr Singh told the Tribunal that, so far as he is aware, the Company’s then representative was never told to withdraw its nomination.  He said he began working at the restaurant in 2013 and was offered a position there on a Subclass 457 visa in November 2014.  His boss decided to move overseas and the Head Chef of the restaurant took over the business.  Subsequently, the business was sold in April 2018 and his new boss is looking to open a business in Bankstown. 

11. The second named applicant, Mr Singh’s wife Ms Manpreet Kaur, gave the Tribunal evidence in relation to her qualifications as a teacher in India and her work experience in Australia in the IT sector. 

12. The Tribunal acknowledged oral evidence from the applicants given at the hearing and Mr Singh’s letter responding to the Tribunal’s s.359A letter. However, it observed that it has no discretion and, as confirmed by the decision in Singh’s case referred to above, a nomination for a Subclass 186 visa is a once-off process. As such, the Company’s nomination in relation to which Mr Singh made the necessary Schedule 1 declaration in his Subclass 186 visa application and which was withdrawn by the Company on 28 December 2018 was not approved by the Department. The Tribunal confirmed it cannot, as requested by the applicants, ‘link’ a later lodged nomination – even one by the same employer for the same position – to Mr Singh’s Subclass 186 visa application. The Tribunal also observed that, in the circumstances presented by this case, it must affirm the delegate’s decision to refuse the applicants’ Subclass 186 visa applications. The applicants indicated their acceptance of the Tribunal’s observations in this regard.

13. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether Mr Singh, as the primary applicant, has been identified as the nominee in an approved nomination as required by cl.186.233(3) of Schedule 2 to the Regulations. The nomination must be the nomination in relation to which Mr Singh made the necessary Schedule 1 declaration in his visa application.

    Nomination of a position

15. Clause 186.233 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 Direct Entry 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.

16. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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.

17. The Company’s related nomination application was withdrawn from the Department. In the circumstances, as the nomination application made by the Company for the position of Café or Restaurant Manager to which Mr Singh’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations.

18. Accordingly, cl.186.233 of Schedule 2 to the Regulations is not met.

19. Mr Singh 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 2 visa streams, the Temporary Residence Transition stream or the Labour Agreement stream.  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.

20. The Subclass 186 visa application made by Ms Kaur is based on her a being member of the family unit of a person who meets the primary criteria.  As Mr Singh does not meet the primary criteria, his wife does not meet criteria for the grant of the visa.  Accordingly, the delegate’s decision to refuse the application of the second named applicant must also 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

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (4A)   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.

    (5)    The position is still available to the applicant.

    (6)    The application for the visa is made not more than 6 months after the Minister approved the nomination.

    oOOo