Bagga (Migration)

[2020] AATA 4148

Bagga (Migration) [2020] AATA 4148 (29 September 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Anugeet Singh Bagga

CASE NUMBER:  1930565

DIBP REFERENCE(S):  BCC2017/3303138

MEMBER:  Antonio Dronjic

DATE AND TIME OF

ORAL DECISION AND REASONS:          29 September 2020 at 11:45 am (VIC time)

DATE OF WRITTEN RECORD:                2 October 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 02 October 2020 at 10:02am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

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

CASES

MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2019 to refuse to grant the visa applicant a Employer Nomination (Permanent) Subclass 186 visa under the Migration Act 1958 (the Act).

1. The applicant applied to the Tribunal on 28 October 2019 and provided a copy of the primary decision record with the application.

1. On 27 August 2020, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

·Your visa application was refused by the Department on 9 October 2019, because the nomination mentioned in cl.186.223 in respect of the applicant has not been approved.

·The decision not to approve the nomination by Mr Bhanupradeep Dandala, trading as Dan IC Design and Synthesist was made by the Department on 4 September 2019.

·Mr Bhanupradeep Dandala applied for review of this decision at this Tribunal on 20 September 2019.

·On 25 August 2020, the Tribunal affirmed the Department’s decision not to approve the nomination made by Mr Bhanupradeep Dandala.

This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 186 visa. This is because one of the criteria contained within subclass 186, namely clause 186.223 requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

1. The applicant responded to the Tribunal’s invitation on 10, 28 and 29 September 2020.

1. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a response to s.359A invitation and that any reply directed to the information will constitute a “response”. Accordingly, the Tribunal accepts that the applicant responded to the information contained in s.359A letter.

1. On 10 September 2020, the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the hearing on 29 September 2020.

1. The applicant attended the Tribunal hearing and, in his evidence, confirmed that the appointment mentioned in subclass 186.223 lodged by Mr Bhanupradeep Dandalaon his behalf has not been approved at the time of Tribunal decision.

1. At the hearing on 29 September 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Mr Bhanupradeep Dandala on behalf of the applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 186.223 at the time of its decision.

1. 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.

DECISION

1. The Tribunal affirms the decision under review.

Antonio Dronjic Member