Birl (Migration)

[2020] AATA 3707

Birl (Migration) [2020] AATA 3707 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur Birl
Mr Ravinder Singh
Miss Simart Kaur

CASE NUMBER:  1723620

HOME AFFAIRS REFERENCE(S):          BCC2016/4270586

MEMBER:Ian Berry

DATE:9 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 09 September 2020 at 2:13pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – no approved nomination – tribunal affirmed nomination refusal – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl 186.223(2)

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 19 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 December 2016. 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of café or restaurant manager ANZSCO[1] code 141111.

   [1] Australian and New Zealand standard classification of Occupations

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 applicant did not have an approved nomination as required by the regulations under Part 186.

6. The applicant appeared before the Tribunal on 9 September 2020 to give evidence and present arguments. The Tribunal received oral evidence only from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

7. The applicants were represented in relation to the review by their registered migration agent Mr Prakash MARN 0854124. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject to an approved nomination where she is the nominee for the position of Café or Restaurant manager.

   Nomination of a position

10. 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.

11. 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.

12. The applicant was the nominee of a nomination application made by her employer Sheetal Indian Restaurant Pty Ltd. She had been employed by that business since 10 August 2014 and is still so employed. The applicant, in her submission of 20 April 2020, said that after two years, she applied for the Part 186 visa as her employer would nominate her. The applicant had the necessary qualifications to undertake the position of restaurant manager, however the applicant’s employer had its nomination application refused by the Minister’s delegate and then the Tribunal on 9 September 2020.

13. Therefore, cl.186.223 is not met.

14. 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.

    Jurisdiction concerning Arpit

15. The applicant gave birth to a baby daughter four days after the making of the visa application made on 17 December 2016. The delegate’s decision of 19 September 2017 did not refer to the birth of the applicant’s daughter Arpit.

16. On or just after 10 July 2017, the applicant appears to have provided the Department with a copy of the Form 1436 entitled ‘Adding an additional applicant after lodgement’ attaching the youngest daughter’s passport (Arpit) with her birth certificate dated 24 January 2017. It was on the Department’s file but not referred to either in notes or emails. Notwithstanding, the delegate’s decision did not refer to the newborn child Arpit and therefore a decision has not been made with respect to that child.

17. The Tribunal does not have jurisdiction to decide on the application for review in so far as it concerns the child Arpit, as the delegate has not made a visa decision in respect of her.

18. In respect of the second and third named applicants, the Tribunal notes there is no information before it to suggest that the second and third named applicants] meet the primary criteria for the grant of the visa. The second and third named applicants applied for the visa because of being a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the second and third named applicants, as they are members of the family unit of a person who does not satisfy the primary criteria for the visa.

    DECISION

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

    Ian Berry
    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.