Bhagchandani (Migration)

[2020] AATA 1078

Bhagchandani (Migration) [2020] AATA 1078 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kapil Satish Bhagchandani

CASE NUMBER:  1927094

HOME AFFAIRS REFERENCE(S):          BCC2019/3191207

MEMBER:Alison Mercer

DATE:7 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 07 April 2020 at 4:42pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chef – specified work experience and skill level – no response to section 359(2) invitation – not entitled to appear before the Tribunal – positive skills assessment issued for the purpose of a subclass 485 visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.234

CASES
Hasran v MIAC [2010] FCAFC 40

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 on 5 September 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 June 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 (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 applicant applied for the visa in the Direct Entry stream, to work in the nominated position of Chef.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations. The delegate found that the applicant did not provide a specified skills assessment for his nominated occupation at the time of his visa application, and was not exempt from having to do so. The delegate noted that although the applicant had provided a provisional skills assessment dated 16 January 2018, issued by Trades Recognition Australia (TRA), that skills assessment was stated to be a provisional skills assessment for subclass 485 visa purposes, and cl.186.234(2)(aa) specifically stated that a skills assessment issued for the purposes of a subclass 485 visa was not acceptable for the purposes of satisfying cl.186.234.

6. The Tribunal received a review application on 25 September 2019 from the applicant, which was accompanied by a copy of the delegate’s decision and (amongst other documents) a copy of the applicant’s provisional skills assessment as a Chef, issued by TRA on 16 January 2018.

7. On 10 February 2020, the Tribunal wrote to the applicant to invite him to attend a hearing on 24 March 2020.

8. On 23 March 2020, the Tribunal wrote again to the applicant to advise him that due to the evolving situation with COVID19, the hearing on 24 March 2020 had been postponed to a date to be advised, subject to his response to the Tribunal’s invitation to provide information to it. Specifically, the Tribunal noted that the delegate found that the applicant did not meet cl.186.234 of Schedule 2 to the Regulations, which required that at the time he made his visa application on 24 June 2019, he had demonstrated that he had a positive skills assessment from the relevant assessing authority for his nominated occupation of Chef, which was not issued for the purposes of a subclass 485 (Graduate Skilled) visa. The delegate further found that the applicant was not exempt from having to meet this requirement. Pursuant to s.359(2) of the Act, the Tribunal invited the applicant to provide information by 6 April 2020 to demonstrate how he met cl.186.234 at the time of his visa application.

9. The Tribunal further advised the applicant that if he failed to provide the requested information, or to request an extension of time to do so, by 6 April 2020, then he would lose his entitlement to a hearing before the Tribunal, and the Tribunal might make its decision on the available evidence without taking further steps to obtain the requested information.

10. The Tribunal did not receive the requested information, or a request for an extension of time to provide it, from the applicant by 6 April 2020. It has received no further communication from him to date.  The Tribunal is satisfied that its letter of 23 March 2020 was sent to the email address nominated by the applicant for the purposes of the review.

11. The applicant did not provide the information within the prescribed period and no extension was granted. In these circumstances, s.359C applies and pursuant to s.360(3), the 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the requested information, given the lack of a specified skills assessment was identified to the applicant as the issue in dispute in the Department decision of 5 September 2019 and the Tribunal’s letter of 23 March 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Clause 186.234 provides as follows:

    186.234

    (1) At the time of application, subclause (2) or (3) applies.

    (2) All of the following apply:

    (a) an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant’s skills as suitable for the occupation;

    (aa) the assessment is not for a Subclass 485 (Temporary Graduate) visa;

    (ab) if the assessment specifies a period during which the assessment is valid, and the period does not end more than 3 years after the date of the assessment – the period has not ended;

    (ac) if paragraph (ab) does not apply – not more than 3 years have passed since the date of the assessment;

    (b) the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.

    (3) the applicant is a person in a class of persons specified by the Minister in an instrument in writing for this subclause.

14. The classes of persons specified as exempt for the purposes of cl.186.234 are set out in IMMI 18/045 as follows:

    (a) a researcher, scientist or technical specialist who has been assessed at the ANZSCO skill level one or two, and who is nominated for a position by an Australian scientific government agency;

    (b) a person nominated for a position by an Australian university to be employed at an Academic Level of A, B, C, D or E in one of the following positions: (i) University Lecturer (ANZSCO 242111); (ii) Faculty Head (ANZSCO 134411);

    (c) a person who holds a subclass 444 or a subclass 461 visa who has been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave), in the three years immediately prior to the date of application for a subclass 186 visa.

15. There is no evidence before the Tribunal that the applicant falls into any of the above exemption categories for the purposes of cl.186.234(3), and he did not claim to do so in his visa application. The Tribunal finds that he does not meet cl.186.234(3). He must therefore satisfy cl.186.234(2) in order to satisfy cl.186.234 as a whole.

16. The Tribunal acknowledges that the applicant provided to the Department and to the Tribunal a copy of a positive skills assessment issued to him by TRA (the relevant assessing body for the applicant’s nominated occupation of Chef) dated 16 January 2018, obtained before he made his subclass 186 visa application. However, having reviewed that skills assessment, the Tribunal finds that it specifically states that it is a provisional skills assessment that can only be used to apply to the Department for a subclass 485 (Temporary Graduate) visa and ‘does not represent formal accreditation of your skills and experience.’ As such, it does not meet cl.186.234(2)(aa) above. As all of the subparagraphs of cl.186.234(2) must be met for the subclause to be met, the Tribunal finds that the applicant does not meet cl.186.234(2).

17. As the applicant does not satisfy cl.186.234(2) or (3), he cannot meet cl.186.234 as a whole.

18. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alison Mercer
    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.