Bains (Migration)

[2020] AATA 4796

Bains (Migration) [2020] AATA 4796 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satbir Singh Bains
Mrs Sonika
Master Shaan Bains

CASE NUMBER:  1924341

HOME AFFAIRS REFERENCE(S):          BCC2018/1801467

MEMBER:Warren Stooke AM

DATE:28 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2020 at 9:43am

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– Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 16 August 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 24 April 2018. 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager – ANZSCO Code: 149212.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nominating sponsor, Galati Nominees Pty Ltd had not been approved and that the nomination was withdrawn on 12 July 2019.

6. The applicants appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Sonika, the second applicant.

7. The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with the application for review.

8. The applicant was not represented at hearing by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in the present case are whether the first named applicant is the subject of an approved nomination and whether the second and third named applicants meet the criteria for the visa as members of the family unit of a person who have satisfied the primary criteria for the grant of the visa.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal explained the requirement of cl.186.223, which requires that the ‘Minister has approved the nomination’ and asked the applicant if he had an approved nomination. The applicant responded: “No Sir, not at the moment”.

14. The applicant provided in evidence that he worked for Galati Nominees Pty Ltd from March 2010 until September 2018 and that he had an arrangement that when he was granted his 186 visa he would return to work with the business, as the company did not have enough work for him.

15. The applicant stated that he had submitted all the required documentation, including medical and police clearances and that he received an email that the nomination was refused, which he felt was not right and sounded to be unfair.

16. The Tribunal noted that the delegate’s decision provided to the Tribunal by the applicant, with the appeal application, indicated that Galati Nominees Pty Ltd withdrew the application of their own appeal application, concerning the refusal of the nomination by the Department, on 12 July 2019.

17. The Tribunal explained to the applicant that the regulations needed to be complied with and on the basis of the evidence that the applicant had provided, he does not have a nomination approved by the Minister and he has not worked with the company since September 2018.

18. Therefore, cl.186.223 is not met.

19. 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.

20. On the basis that the primary applicant has not met the criteria required to be granted a 186 visa, it thereby follows that the secondary applicants are not members of a family unit that has met the requirements to be granted a 186 visa and accordingly have not met the requirements of the regulations to be granted a 186 visa.

    DECISION

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

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.