Amarjeet Kaur (Migration)

[2022] AATA 5079

Amarjeet Kaur (Migration) [2022] AATA 5079 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amarjeet Kaur
Mr Rohan Singh
Mr Gurnam Singh

REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)

CASE NUMBER:  1926114

HOME AFFAIRS REFERENCE(S):          BCC2016/2416920

MEMBER:Nicola Findson

DATE:1 June 2022

PLACE OF DECISION:  Perth

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

Statement made on 01 June 2022 at 2:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Painting Trades Worker – at the date of its decision the applicant is not the subject of an approved nomination– tribunal affirmed nomination decision – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

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 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 July 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 (Cth) (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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Painting Trades Worker (ANZSCO 332211).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, because there was no approved nomination.

6. The applicants appeared before the Tribunal on 30 March 2022, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants did not raise any concerns in relation to holding a telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review. However, the migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 reg 1.13A and reg 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 17 February 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act.  This letter followed an outcome in a matter (1922465) which related to the nomination of the relevant position by the applicant’s employer, Satzas Pty Ltd.  The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by Satzas Pty Ltd was refused by a delegate of the Minister on 25 July 2019, and, although Satzas Pty Ltd sought a review of the refusal decision, on 5 October 2021 the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. On 3 March 2022, the Tribunal received a response from the applicant which sets out that she worked for Satzas Pty Ltd from 2013 until the company was “shut down” in 2019.  She submits it is not her fault that the business is no longer operating.  She states that the uncertain visa situation for her and her family has been very distressing.  The applicant submits that she is a diligent and hardworking employee.  She explains that she has been living in Australia for 12 years with her husband and son, and that being able to remain in Australia is extremely important to all of them.  It is submitted that that the applicant’s son, who is now 14 years old, is settled in Australia and that there would be much hardship and disruption to the applicants if they were forced to leave Australia.  The applicant sets out that she has worked very hard for her employer, and to make a life for herself and her family in Australia, and that she hopes the visas are granted so that they can remain in Australia, “worry free”. 

14. A bundle of documents confirming the applicant’s employment between 2013 and 2019 with Satzas Pty Ltd accompanied the applicant’s submission, including bank statements of the applicant showing wage deposits, payslips, PAYG Payment Summaries and Notices of Assessment.  A skills assessment dated 29 March 2021 issued to the applicant by the Trades Recognition Australia in relation to her occupation of Painting Trades Worker was also provided to the Tribunal. 

15. At the hearing the Tribunal explained to the applicants the requirements of cl.186.223.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The Tribunal explained that it does not have the discretion to waive the requirements of cl.186.223, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.  The Tribunal also explained that cl.186.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa.  The applicants indicated that they understood the requirements for the visa.

16. The applicant reiterated her claims to the Tribunal, that for several years she had worked hard in the role of a painter for Satzas Pty Ltd with the hope that a permanent visa would ultimately be granted.  She told the Tribunal that her employer had gone overseas and because of the Covid-19 pandemic had been unable to return, and so his company was forced to close. The applicant indicated that it was a very frustrating situation she and her family were in.  The applicants added that their visa application process had taken a very long time and that co-workers who had had their visa applications dealt with before the Covid pandemic had received favourable outcomes, which they thought was very unfair.  The applicant also indicated to the Tribunal that she was currently awaiting the outcome of a new nomination application, in relation to her, made by ‘Ridgewater Projects Pty Ltd’.

17. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

18. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 20 July 2016, the applicant was the subject of a nomination application by Satzas Pty Ltd, for the position of Painting Trades Worker.  The Tribunal further finds that the nomination application lodged by Satzas Pty Ltd was refused by the Department on 25 July 2019, and although Satzas Pty Ltd sought review of the refused nomination, on 5 October 2021 the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination.

19. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.186.223(2) is not met.  It follows that cl.186.223 is not met.

20. 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.

21. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second and third-named applicants do not satisfy the secondary criteria for the visa.  Consequently, the second and third-named applicants do not satisfy cl.186.311 and the decision under review must be affirmed in respect of them.

22. The Tribunal acknowledges the difficult situation faced by the applicants.  However, as explained to the applicants during the hearing, the Tribunal does not have the discretion to waive the requirements of cl.186.223, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements. 

    DECISION

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

    Nicola Findson
    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.