Bhetwal (Migration)

[2019] AATA 2667

Bhetwal (Migration) [2019] AATA 2667 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jana Jyoti Bhetwal

CASE NUMBER:  1815562

HOME AFFAIRS REFERENCE(S):           BCC2017/1961440

MEMBER:Nicola Findson

DATE:14 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 14 May 2019 at 9:19pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – nomination refused – applicant not subject of approved nomination – Tribunal attempted to contact applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 186.223

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 Home Affairs on 14 May 2018 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 2 June 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position for the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination approved by the Minister.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is subject to a nomination approved by the Minister.

   Nomination of a position

8. 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.

9. 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 r.1.13A and r.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.

10. On 21 November 2018, the Tribunal wrote to the applicant, at the address nominated by him in his review application as well as via his nominated representative, to inform him that the Migration Agents Registration Authority (MARA) had advised it that the MARA registration of his nominated representative and authorised recipient was cancelled on 15 November 2018.  The letter indicated that the applicant should contact his nominated representative to discuss whether he would continue to provide assistance and that it would continue to send correspondence to her, unless advised otherwise in writing.  The Tribunal did not receive any response to its letter from either the applicant or his nominated representative.

11. On 5 December 2018, the Tribunal wrote to the applicant pursuant to s.359(1) of the Act inviting him to provide information as to whether the nomination for the position identified in his visa application has been approved.  This letter was sent via his nominated representative as well as to the address provided in the review application.  The Tribunal notes that the letter sent to the applicant at the address provided for the review was returned to sender.

12. On 29 January 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to a hearing on 27 March 2019.  The Tribunal observes that its invitation was returned to sender, SMS reminders sent on 20 and 26 March 2019 failed, and the applicant did not attend the hearing on the day and at the scheduled time and place.

13. On 2 April 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, and invited him to comment or respond to information that his visa application was refused by the Department on 14 May 2018 because the nomination application relating to him and lodged by his sponsoring employer, Ganadhar International Pty Ltd, was not approved; the decision not to approve the nomination application was made by the Department on 3 April 2018; and although on 17 April 2018 Ganadhar International Pty Ltd did apply for a review of this decision to the Tribunal, this review application was subsequently withdrawn on 10 July 2018.  The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because cl.186.223 requires that the nomination was approved by the Minister and that the nomination has not subsequently been withdrawn.

14. 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 16 April 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal. 

15. The applicant has not provided the comments within the prescribed period and no extension has been 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 comments.

16. On the basis of the evidence before it, the Tribunal finds that at the time the applicant lodged his visa application on 2 June 2017, the applicant was the subject of a nomination application by Ganadhar International Pty Ltd for the position of Café or Restaurant Manager.  The Tribunal further finds that the nomination application by Ganadhar International Pty Ltd was refused by the Department on 3 April 2018.  The Tribunal finds that although Ganadhar International Pty Ltd did apply for review of this refusal decision, it subsequently withdrew its application on 10 July 2018.

17. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved. Given this, the Tribunal finds that the requirements of cl.186.223 are not met.

18. 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.

    DECISION

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

    Nicola Findson
    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.