Bhatt (Migration)

[2024] AATA 2337

Bhatt (Migration) [2024] AATA 2337 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manali Umeshkumar Bhatt
Mr Sapan Amrishkumar Shah

REPRESENTATIVE:  Mr Daniel Mattheus Estrin

CASE NUMBER:  2118990

HOME AFFAIRS REFERENCE(S):          BCC2021/1337732

MEMBER:SM Michael Cooke

DATE:27 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2024 at 12:30pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Direct Entry stream – position of Accountant (General) – no approved nomination – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 9 December 2021 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 30 June 2021. 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 Direct Entry stream, to work in the nominated position of Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The Tribunal subsequently affirmed the delegate’s decision on review (AAT 2116183 SABCHA PTY LTD). 

7. The applicants were issued an Invitation pursuant to s.359A of the Act requesting them to comment on the fact they were not the subject of an approved nomination.

8. The applicants responded to the Invitation through their representative on 11 June 2024.

9. The applicants appeared before the Tribunal on 24 June 2024 to give evidence.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the subject of an approved nomination.

    The Hearing

13. The Tribunal gave the applicants an explanation for their visa predicament. It explained to them how their nominator employer SABCHA P/L had been refused approval of its nomination and why this was later affirmed by the Tribunal on review. The applicants indicated they had spoken to their employer. The Tribunal then referred to the Invitation pursuant to s.359A of the Act. Their representative had responded in time to this and had requested the Tribunal to seek Ministerial Intervention on their behalf. The Tribunal then explained what this meant and the Ministerial Guidelines which governed such a request.

14. The first named applicant then made a personal statement to the Tribunal on the applicants’ behalf. She indicated that they were devastated by the potential outcome of their review. They had waited for years for a result. What was particularly galling to them was that they had been encouraged strongly to join with the other SABCHA related visa applicants in applying for Subclass 186 visas on the proviso that all their costs would be met by their employer. In fact, they should have applied for a Subclass 189 visa because they had been issued by the Department with an Invitation to do so.

15. The first named applicant then tendered a copy of the Departmental Subclass 189 invitation to the Tribunal - for its edification. She indicated that she was invited precisely because she met all the requirements for that subclass. In particular, she was an accountant and meet the language and skill requirements. The Tribunal then perused the document and informed her it would keep it on the Tribunal file and investigate further.

16. The Tribunal then referred to the representative’s request that it seek Ministerial Intervention on the applicants’ behalf. The Tribunal made the applicants aware of the Guidelines that governed such requests.

    Nomination of a position

17. 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.

18. 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.

19. On 27 May 2024 the Tribunal affirmed the refusal of the nomination of Sabcha P/L the applicant’s nominator.

20. The Tribunal finds that the applicant is not, therefore, the subject of an approved nomination as required.

21. Therefore, as a result cl 186.223 is not met.

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.

    Ministerial Intervention Request

23. The applicants have requested the Tribunal to intervene on their behalf.

24. The Tribunal believes there is a recognized request within the Ministerial Guidelines based on:

    Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.

25. The first named applicant has already provided to the Department or Tribunal:

    Documents demonstrating why you would be of exceptional benefit to Australia:

    ·evidence of her English language standard such as the results of an International English Language Testing System (IELTS) language test

    ·evidence of qualifications, for example degrees or membership of a professional body

    ·evidence that her skills are recognised in Australia by a relevant Australian assessment authority

    ·employer references showing she has been employed in her profession or trade business or financial statements.

    ·A copy of an Invitation to apply for a Subclass 189 visa in SkillSelect issued by the Department.

    DECISION

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

    Michael Cooke
    Senior 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.