Bemina Hennedige (Migration)

[2023] AATA 4633

Bemina Hennedige (Migration) [2023] AATA 4633 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Suraj Chanaka Peiris Bemina Hennedige
Mrs Imali Kaushalya Pattiya Pawulu Waduge Dona
Mr Jayden Nethaniel Peiris Bemina Hennedige

CASE NUMBER:  2005209

HOME AFFAIRS REFERENCE(S):          BCC2019/5098582

MEMBER:Mary Sheargold

DATE:1 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 01 December 2023 at 8:17am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Café or Restaurant Manager –applicant failed to provide the requested information – nomination refused – tribunal affirmed nomination decision – not the subject of an approved nomination – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.311

CASES
Hasran v MIAC [2010] FCAFC 40
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 10 March 2020 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 11 October 2019. 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 Café or Restaurant Manager, ANZSCO 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination application made by Sharma Trading Investments Pty Ltd for the position of Café or Restaurant Manager was not approved.

6. On 31 August 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Café or Restaurant Manager made by Sharma Trading Investments Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the nominator had applied to the Tribunal for review of that decision but it was recently affirmed by the Tribunal.  The letter outlined that this information is relevant to the review 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.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 14 September 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and prepare arguments.

8. The review applicant did not provide the comments within the prescribed period and no extension was sought nor was one granted.  In these circumstances, s.359C applies, and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. On 19 September 2023, the Tribunal wrote to the review applicants noting that it had not received any comments or response to its invitation dated 31 August 2023, and advised the review applicants that a telephone hearing listed for 20 September 2023, to which they had been separately invited, had been cancelled due to the effect of ss.360(3) and 363A of the Act.

10. For completeness, the Tribunal notes that the review applicant also failed to respond to the invitation to attend the hearing.  The Tribunal offered the applicants an opportunity to provide any additional material to support their case by 3 October 2023.  On 4 October 2023, the first named applicant provided a brief email submission, and this is considered below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

13. 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.

14. 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.

15. The nominator’s nomination application was refused by the Department, and Tribunal recently affirmed that decision.  On 4 October 2023, the first named applicant wrote to the Tribunal noting that he had had trouble at Indian Mhefil, the restaurant owned by the nominating sponsor and where he worked as the Restaurant Manager from October 2015, due to a lack of acceptance from his coworkers.  He noted that ultimately, the Covid-19 pandemic forced the closure of the business, but that he had resigned in May 2020 due to a combination of pressures he felt trying to be accepted by his coworkers and the immediate impact of Covid-19.  He acknowledges that he was appreciative of the knowledge and abilities he acquired in that role, but otherwise makes no comments regarding the nomination approval.

16. As the nomination application for the position to which the applicant’s Subclass 186 visa relates has not been approved, it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

17. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 relating to the mirroring provision in cl.187.233(3) of Schedule 2 to the Regulations where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

18. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.186.223(2) in relation to his application.  The nomination by Sharma Trading Investments Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl 186.223(2) 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. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant Subclass 186 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 186 visa, and there is no evidence that either of them meets the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    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.