CHAWLA (Migration)

[2021] AATA 1302

CHAWLA (Migration) [2021] AATA 1302 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  AMARPREET CHAWLA
VARUN SHARMA

CASE NUMBER:  1805145

HOME AFFAIRS REFERENCE:               BCC2017/2293246

MEMBER:Lilly Mojsin

DATE:25 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2021 at 9.00 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hair or Beauty Salon Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 23 February 2018 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 28 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 review, the first named applicant (the applicant) is seeking the visa, to work in the nominated position of Hair or Beauty Salon Manager ANZSCO 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(1) of Schedule 2 to the Regulations because the nomination made by Shashi Beauty Salon Pty Ltd[1] was not approved.

   [1] AAT 1801675

6. The applicants appeared before the Tribunal on 23 January 2020 to give evidence and present arguments.

7. On 20 January 2021 the Tribunal wrote to the applicant, pursuant to s.359A of the Act,  advising that on 15 January 2021 the Tribunal affirmed a decision of the Delegate of the Minister for Home Affairs refusing Shashi Beauty Salon Pty Ltd approval of a nomination of position Hair or Beauty Salon Manager ANZSCO 141111. The applicant was advised that her comments or response to the s.359A invitation should be received by 3 February 2021.

8. On 3 February 2021 the applicant responded to that invitation stating:

   I perform all the duties as per ANZSCO code beauty and hair salon manager without considering what my boss was showing in financials. She is keeping me for the last 7 years and just opened a new salon in Burwood a few weeks ago in the current COVID situation. Department has approved other files on the basis of the same financials and staffing.

   I am paying taxes and contributing to raising the Australian economy since the day m arrived in this country. I know AAT takes decisions on the basis of facts and proofs. But I really want to look on this side of the story where someone works really hard, paid taxes, and just got refused because the company can’t survive long.

   I have skills but can’t apply for any other visas onshore as prohibited under section 48. Due to the current covid situation, there are limited flights and very expensive. Our financial condition is not strong to afford it. Our son is just 18 months old. It is very hard for our family to go overseas to lodge a new visa.

9. The applicant was invited to a further hearing of the Tribunal on 3 March 2021.  The applicant sought additional time until 12 March 2021 at 5.00pm in order to provide further information for a referral to the Minister. No information was provided to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 Tribunal accepts that the applicant has worked for Shashi Beauty Salon Pty Ltd for a number of years and is financially unable to leave Australia and reapply for a visa offshore. The Tribunal does not have a discretion, in this instance.  

13. As the nomination made by Shashi Beauty Salon Pty Ltd of the position Hair or Beauty Salon Manager ANZSCO 141111 was not approved, the Tribunal finds cl.186.223(1) is not met.

14. Relevantly cl. 186.311 states:

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

15. In regard to the 2^nd named applicant as he is not a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, clause 186.311(a) is not satisfied.

16. 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.

17. The applicant sought referral to the Minister. As no further information was provided to the Tribunal, the Tribunal does not refer this matter to the Minister.

    DECISION

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

    Lilly Mojsin
    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.