Behgal (Migration)

[2018] AATA 5580

Behgal (Migration) [2018] AATA 5580 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep Kaur Behgal
Mr Ekamjot Behgal
Mr Manpreet Singh Behgal

CASE NUMBER:  1727987

HOME AFFAIRS REFERENCE(S):           BCC2017/729100

MEMBER:Susan Trotter

DATE:26 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 26 November 2018 at 5:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – invitation to provide further information – no response – not entitled to appear before the Tribunal – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls 186.223, 186.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 (the Minister) on 2 November 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 23 February 2017. 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 the 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(2) because the applicant was not the subject of an approved nomination as required and, as regards the second-named and third-named applicants, they were not each a member of the family unit of a person holding a Subclass 186 visa as required for secondary visa applicants.

6. The applicants were represented in relation to the review.

7. On 9 November 2018, the Tribunal invited the applicants to comment on or respond to certain information before it. The Tribunal’s letter stated as follows:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·Department of Home Affairs (previously the Department of Immigration and Border Protection) (the Department) records indicate that, on 23 February 2017, Yellow Brick Road PL ATF VR Trust lodged an application for approval of an employer nomination in the Temporary Residence Transition Nomination (TRTN) stream under subregulation 5.19(5) of the Migration Regulations 1994 (the Regulations). This application identified the nominated person as Sandeep Kaur Behgal.

   ·On 23 February 2017, you lodged an application for Subclass 186 Employer Nomination (Permanent) visas with the Department. In this application, you provided the employer nomination details for the employer application lodged by Yellow Brick Road PL ATF VR Trust on 23 February 2017.

   ·On 21 September 2017, the Department refused the employer nomination application lodged by Yellow Brick Road PL ATF VR Trust.

   ·An application to review this decision was made to the Tribunal by Yellow Brick Road PL   ATF VR Trust on 10 October 2017.

   ·On 6 November 2018, the Tribunal decided that it did not have jurisdiction in relation to the application lodged by Yellow Brick Road PL ATF VR Trust.

   ·There is also no evidence before the Tribunal that Yellow Brick Road PL ATF VR Trust has a current pending application for approval of a nomination in the Temporary Residence Transition stream under subregulation 5.19(3) identifying Sandeep Kaur Behgal as the nominated person.

   ·In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   The above information is relevant to the review because it suggests that Sandeep Kaur Behgal as the primary visa applicant does have not an approved nomination as required by clause 186.223(2) of Schedule 2 to the Regulations, one of the criteria for the visa to be granted to Sandeep Kaur Behgal as the primary visa applicant. Further there is no evidence to suggest that Sandeep Kaur Behgal alternatively meets the requirements in clause 186.233 under the Direct Entry Stream or clause 186.242 under the Agreement Stream.

   Consequentially the second-named and third-named applicants may not meet clause 186.311, requiring them each to be a member of the family unit of the primary visa applicant who holds a Subclass 186 granted on the basis of satisfying the primary criteria for grant of the visa.

   YOU ARE INVITED TO GIVE COMMENTS ON OR RESPOND TO THE ABOVE INFORMATION IN WRITING.

   Your comments or response should be received by 23 November 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 23 November 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 23 November 2018 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

8. The invitation was sent to the applicants’ representative’s email address, being the address provided by the applicants in connection with their application for review.

9. The Tribunal did not receive a response to its invitation of 9 November 2018 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought.

10. As the applicants failed to provide comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ comments or response.

11. Further, as s.359C(2) of the Act applies to the applicants, they lose any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act.

12. Although not requested by the applicants, the Tribunal did also consider whether it should adjourn the review under subparagraph 363(1)(b) of the Act to allow the applicants additional time. In this regard, the Tribunal considered the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment.

13. Neither the applicants not their representative provided any response or comments in relation to the Tribunal’s invitation within the prescribed period set for this purpose, or at all.

14. The Tribunal has had regard to the fact that the visa application was refused on 2 November 2017 for the reasons stated above. The applicants provided a copy of the delegate’s decision record with the review application. The Tribunal therefore observes that the applicants have been aware for over one year of the reasons for the visa application refusal.

15. The Tribunal has also taken into account the fact that the applicants have had the benefit of representation from a registered migration agent in order to assist them with this application and considers it reasonable to expect that applicants’ representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of not responding to the invitation the Tribunal sent to the applicant on 9 November 2018, which consequences were also set out in the Tribunal’s letter of 9 November 2018.

16. Having taken all of these matters into account, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information requested, given that the Tribunal is satisfied that the applicants have been given a reasonable opportunity and ample time to provide information in relation to an essential requirement for the grant of the visa, and have not done so. The Tribunal does not propose to exercise its powers under s.363(1)(b) of the Act in the applicants’ favour to adjourn the review and postpone its decision-making any further to allow them additional time.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

19. Clause 186.223(2) is set out 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 primary visa applicant.

20. As noted in the Tribunal’s 9 November 2018 letter to the applicants, the evidence before the Tribunal is that the nomination application lodged by Yellow Brick Road Robina PL ATF VR Trust on behalf of the applicant was refused by the Department on 21 September 2017, on 10 October 2017 an application to review that decision was lodged with the Tribunal and on 6 November 2018 the Tribunal decided that it did not have jurisdiction in relation to that application[1]. It follows that the nomination by Yellow Brick Road Robina PL ATF VR Trust has not been approved at the time of the Tribunal’s decision.

    [1] Tribunal file no 1724548

21. As a result, the Tribunal finds that the applicant does not meet the requirements of cl.186.223(2) at the time of its decision.

22. 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.

23. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants a Subclass 186 visa as they do not meet the secondary visa criteria requiring each to be a member of the family unit of a person who holds a Subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    DECISION

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

    Susan Trotter
    Member

    
    

    ATTACHMENT

    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.