Chandra (Migration)

[2018] AATA 1604

Chandra (Migration) [2018] AATA 1604 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Arti Esha Chandra

CASE NUMBER:  1726094

DIBP REFERENCE(S):  BCC2017/2212967

MEMBER:Mark Bishop

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2018 at 2:35pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Nomination refused by delegate – Nomination refusal affirmed by Tribunal - Applicant not subject of an approved nomination – Applicant did not attend hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 186.233(3)

CASES

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 6 October 2017 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 22 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186. 233(3) of Schedule 2 to the Regulations because on 7 August 2017 the nomination lodged by LRR Investment Australia Pty Ltd was refused by a delegate of the Minister. On 23 August 2017 an invitation to comment on the nomination refusal was sent to the nominee. The applicant was invited to respond within 28 days. The applicant did not respond. Accordingly as the appointment was refused cl.233(3) was not met. The nominee did not meet the requirements of cl.186.233.

6. On 19 March 2018 the Tribunal wrote to the applicant in respect to her application for review made in respect of a decision to refuse to grant an Employer Nomination (Permanent) visa.

7. The Tribunal wrote “You are invited under s.359(2) to provide in writing information demonstrating that you are the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233(3) of Schedule 2 to the Migration Regulations 1994”.

8. The applicant did not respond to the request for information. The applicant did not request an extension of time. The applicant did not provide any information to the Tribunal.

9. As the applicant did not provide the information within the period allowed the Tribunal moved to address the application.

10. The Tribunal resolved the matter on the papers.

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 a nomination approved by the Minister under r.5.19 as required by cl.186.233(3) of Schedule 2 to the Migration Regulations 1994”.

13. An application for an Employer Nomination Scheme (subclass 186) visa has been made by the applicant.

14. A visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied.

15. In this case, the Tribunal is not satisfied that clause 186.233 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    186.233

    (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:

    (i)     subparagraph 5.19(4)(h)(i); or

    (ii)    subregulation 5.19(2) as in force before 1 July 2012; and

    (b) 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 person who will employ the applicant is the person who was the nominator in the application

    for approval.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (5)    The position is still available to the applicant.

    (6) The application for the visa is made not more than 6 months after the Minister approved the nomination.

16. An application for visa was lodged by Ms Arti Esha Chandra on 22 June 2017 in relation to an appointment of a ‘Cafe or Restaurant Manager (ANZSCO 141111’. Ms Chandra claimed to satisfy the criteria for subclass 186 visa under the ‘Direct Entry (DE) Stream’.

17. On 7 August 2017 the nomination lodged by LRR Investment Australia Pty Ltd being the nomination referred to in clause 186.233(1), was refused by a delegate of the Minister for Immigration and Border Protection.

18. The delegate determined Ms Chandra did not meet the requirements of clause 186.233.

19. LRR Investment Australia Pty Ltd sought review of the decision of the delegate. On 9 March 2018 the Tribunal issued a decision in that review application. The Tribunal affirmed the decision under review to refuse the nomination.

20. As discussed in paragraphs 6-8 above the Tribunal sought information from the applicant that she the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233(3) of Schedule 2 to the Migration Regulations 1994”.

21. The applicant did not provide the requested information.

22. There is no information before the Tribunal that the applicant is the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233(3) of Schedule 2 to the Migration Regulations.

23. As cl.186.233 is not satisfied, the Tribunal finds the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied. Hence the Tribunal refuses the application by the applicant for an Employer Nomination Scheme (subclass 186) visa.

    DECISION

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

    Mark Bishop
    Member