Bharaj Construction Pty Ltd (Migration)

[2017] AATA 3146

Bharaj Construction Pty Ltd (Migration) [2017] AATA 3146 (9 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Bharaj Construction Pty Ltd

VISA APPLICANTS:  Mr Sarbjit Singh Sagoo
Mrs Sukhdeep Kaur Sagoo
Mr Harpal Singh Sagoo
Miss Avneet Kaur

CASE NUMBER:  1607161

DIBP REFERENCE(S):  CLF2012/132554

MEMBER:D. Dimitriadis

DATE:9 February 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Employer Nomination (Migrant) (Class AN) visas.

Statement made on 09 February 2017 at 3:11pm

CATCHWORDS
Migration – Federal Circuit Court remittal - Employer Nomination (Migrant) (Class AN) visa – Subclass 119 (Regional Sponsored Migration Scheme) – Requirement to be subject of an approved nomination – Applicants not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(a), Schedule 2, s 119.221

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 (the Minister) on 31 October 2013 to refuse to grant the visa applicants Employer Nomination (Migrant) (Class AN) Subclass 119 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 20 June 2012. The delegate refused to grant the visa to the first named visa applicant (the visa applicant) on the basis that the visa applicant did not satisfy cl.119.221.

3. This case was previously before the Tribunal (differently constituted) (file number 1316676) which affirmed the decision to refuse the visas. On 28 April 2016 the Federal Circuit Court of Australia ordered that the decision of the Tribunal (differently constituted) be quashed and the Tribunal determine the matter according to law. 

4. The review applicant was represented in relation to the review by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant satisfies cl.119.221.

7. In the visa application, the visa applicant stated that he was born in 1968 in India and he holds an Indian passport. He is a citizen of India. The visa applicant stated that the position he had been nominated to fill is a Carpenter (ANZSCO Code 331212) with Bharaj Construction Pty Ltd.

8. Bharaj Construction Pty Ltd (the review applicant) applied to the Department of Immigration on 20 June 2012 for approval of the nomination of a position of Carpenter under r.5.19 of the Migration Regulations 1994 (the Regulations).

9. On 3 October 2012 a delegate for the Minister refused the application by Bharaj Construction Pty Ltd for approval of the nomination of a position, on the basis that the nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate was not satisfied that the employer nomination is made by an employer in respect of a need for a paid employee in a business actively and lawfully operating in regional Australia and operated by that employer.

10. A delegate for the Minister found that the visa applicant did not meet cl.119.221 because the appointment has not been approved. 

11. At the time of lodging the application for review with the Tribunal, the review applicant provided a copy of the delegate’s decision refusing the visas to the visa applicants.

12. Bharaj Construction Pty Ltd applied to the Tribunal for review of the decision to refuse the nomination.  On 27 October 2014 the Tribunal (differently constituted) affirmed the decision under review to refuse the nomination. Bharaj Construction Pty Ltd appealed the decision and on 28 April 2016 the Federal Circuit Court of Australia ordered that the decision of the Tribunal (differently constituted) be quashed and the Tribunal determine the matter according to law. 

13. The Tribunal conducted a review and made a decision on 23 January 2017 to refuse the nomination.

14. On 24 January 2017 the Tribunal wrote to the review applicant pursuant to s.359A of the Act and invited the review applicant to comment on or respond in writing to information which the Tribunal considered would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The Tribunal wrote:

    The particulars of the information are:

    ·On 20 June 2012, the visa applicants lodged Subclass 119 visa applications on the basis that the first named visa applicant (the visa applicant) was nominated in accordance with subregulation 5.19(4) for an appointment in the business of Bharaj Construction Pty Ltd.

    ·Information in the records of the Department of Immigration and Border Protection (the Department) is that on 3 October 2013 the application by Bharaj Construction Pty Ltd for approval of the nomination of a position of Carpenter (ANZSCO 331212) was refused.

    ·On 22 October 2013 Bharaj Construction Pty Ltd lodged an application for review with the Tribunal.

    ·On 23 January 2017 the Tribunal affirmed the decision under review to refuse the nomination application by Bharaj Construction Pty Ltd.

    This information is relevant to the review because cl.119.221 requires that the appointment mentioned in cl.119.211(1) has been approved, has not been withdrawn, continues to satisfy the criteria for approval and is still available to the applicant.  If the Tribunal were to find that the appointment has not been approved, the Tribunal would find that the visa applicant does not satisfy cl.119.221.

    If the Tribunal finds that the visa applicant does not satisfy cl.119.221, the Tribunal will find that the visa applicants are not entitled to the grant of Subclass 119 visas and it will affirm the decision to refuse the visas.    

15. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments or a response were not provided in writing by 7 February 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments or a response and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. The review applicant has not provided the comments or a response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) 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 the review applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

    Approval of appointment

17. Clause 119.221 requires that, at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the visa applicant.

18. It is the appointment mentioned in subclause 119.211(1) at time of application that must have been approved, and not withdrawn, and must continue to satisfy the criteria for approval and still be available to the visa applicant at the time of decision. 

19. The Tribunal made a decision on 23 January 2017 to refuse the nomination. The information before the Tribunal is that the appointment mentioned in subclause 119.211(1) has not been approved. The Tribunal is satisfied that, at time of decision, the appointment in the business of the employer for which the visa applicant has been nominated, has not been approved.   

20. Therefore the appointment mentioned in subclause 119.211(1) has not been approved and the visa applicant does not satisfy cl.119.221(a).  The Tribunal finds at time of decision that the visa applicant does not meet cl.119.221(a). 

21. Therefore, cl.119.221 is not met.

22. The visa applicant has only sought to satisfy the criteria for a Subclass 119 visa. No claims have been made in respect of the other visa in the class. As the visa applicant has not met the criteria for a Subclass 119 visa, the decision under review must be affirmed.

23. There is no information before the Tribunal to indicate that the other visa applicants have been nominated by an employer, in accordance with r.5.19(4), for an appointment in the business of that employer. The Tribunal finds, on the evidence before it, that the second, third and fourth named visa applicants do not meet subclause 119.211(1). The second, third and fourth named visa applicants do not satisfy cl.119.311 because they are not members of the family unit of, and made a combined application with, a person who satisfies, or has satisfied, the primary criteria in Subdivision 119.21.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicants Employer Nomination (Migrant) (Class AN) visas.

    D. Dimitriadis
    Member