DATTA (Migration)

[2019] AATA 2410

DATTA (Migration) [2019] AATA 2410 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJEEV DATTA

CASE NUMBER:  1810444

HOME AFFAIRS REFERENCE(S):           BCC2016/3725569

MEMBER:Alan McMurran

DATE:15 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 April 2019 at 3:09pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Conference and Event Organiser – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360
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 11 April 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 8 November 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Conference and Event Organiser, ANZSCO 149311.

5. The applicant is a citizen of the Republic of India who first arrived in Australia according to Department movement records on 10 March 2009. The applicant departed Australia on 17 April 2018 for India, and it is unclear from the Tribunal’s file whether the applicant has since returned to Australia by his anticipated return date of 2 March 2019.

6. 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 which was approved by the Minister.

7. The applicant was invited to appear before the Tribunal on 28 February 2019. The applicant’s representative advised the Tribunal that he was unable to appear as he was currently overseas until 2 March 2019, and the applicant sought an adjournment. The Tribunal agreed to postpone the hearing to a later date.

8. On 18 February 2019, the Tribunal sent a letter to the applicant providing particulars and inviting the applicant to comment or respond by no later than 4 March 2019, failing which the applicant would lose any entitlement to appear at another hearing and to give evidence and present arguments. The applicant did not respond to the Tribunal’s letter.

9. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant is the subject of a nomination which has been approved by the Minister.

    Nomination of a position

12. 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.

13. 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.

14. The Tribunal has had access to the electronic records available from the Department’s file BCC 2016 3725569. The Tribunal has also had regard to the information on its case file referred to below.

15. On 8 November 2016, the applicant lodged an online application with the Department. The application shows that the applicant had obtained a Diploma in Pharmacy from the Punjabi University and a Bachelor of Arts degree in 1995. The applicant studied in Australia and obtained a Diploma of Business Administration and an AQF Certificate III in Information Technology from the Pacific College of Technology at Auburn in Sydney. According to his work experience in the application, the applicant worked as a pharmacist in India before coming to Australia in 2009. The applicant was a student in Australia from 2009 until 2011. The applicant worked at Eagle Boys pizza in North Parramatta for 12 months in 2010, then as a security officer for ADOT Security Consultants for approximately 6 months, then with the Security Network Protection Group Pty Ltd for another 10 months, before returning to the nominator, Eagle Boys Parramatta in November 2013. The applicant claims he was working as a conference and event organiser for Eagle Boys Parramatta for 3 years from November 2013 until November 2016.

16. In support of his visa application, the applicant provided evidence of his academic transcripts and qualifications. On 1 March 2018, the Department sent a letter to the applicant informing him that the nomination application underpinning his visa application had been refused, and that the applicant on that information was unable to meet the requirements of the subregulation 186.223(2). The applicant was invited to respond to that information within 28 days, providing his written comments.

17. According to the Department records, the applicant made no response to the Department’s letter, and subsequently on 11 April 2018, the applicant’s visa application was refused as set out above.

18. The Tribunal notes that on the Tribunal file, at the time of lodgement of the application and the Tribunal on 13 April 2018, the applicant made a statement that “The applicant believes that the visa refusal is unfair. Detailed submission will follow.” The applicant attached a copy of his current passport from the Republic of India. No further detailed submissions followed.

19. The Tribunal wrote to the applicant on 17 April 2018 acknowledging the application and informing the applicant he could provide material or written arguments for the Tribunal to consider.

20. The Tribunal again wrote to the applicant on 6 December 2018, requesting information and informing the applicant in the letter that:

    “Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa.”

21. The applicant did not reply to the Tribunal’s correspondence. The Tribunal then sent an invitation to the applicant on 4 February 2019 to attend a hearing at the Tribunal on 28 February 2019 in a multi-application hearing list, with other applicants who also did not have an approved nomination. In response to that invitation, the applicant’s representative, Mr Bhatia, informed the Tribunal by email that his client was currently overseas until 2 March 2019, and enclosed a copy of an airline ticket. In response, the Tribunal agreed to a hearing postponement.

22. On 18 February 2019, the Tribunal sent a letter under section 359 of the Act requesting information and looking for an update on the applicant’s position and circumstances which it might properly consider. The applicant was advised that the information was also relevant because the visa application requires that a nomination in relation to the applicant by the nominating employer had been approved by the Minister. The nominating employer was Eagle Boys Parramatta Pty Ltd. The Tribunal letter also states that if the applicant cannot provide “your written comments or response by 4 March 2019, you may ask us for an extension of time in which to provide comments or response”. The applicant did not make any request for an extension of time and the Tribunal has not received any comments, information or responses from the applicant or any further request for a postponement. The Tribunal has waited until well after the applicant’s proposed return date to Australia of 2 March 2019 to conclude the proceedings.

23. As the applicant did not reply by the specified date of 4 March 2019, the applicant has lost his right to appear at the hearing and present arguments and pursuant to section 360 (3) of the Act, the Tribunal must proceed without a hearing and the applicant is not entitled to appear before the Tribunal.

    Findings

24. The Tribunal has carefully reviewed its file and the Department’s file and finds there is no information which shows there is either an approved nomination or an application to review the refusal of the nomination in favour of the applicant for the occupation of conference and event organiser.

25. The Tribunal finds that the applicant has been offered multiple opportunities to provide further information for the Tribunal (and initially the Department) to consider for the visa application, and considers that the applicant has had a fair opportunity in this review for any matters which the applicant might wish to be considered and put before the Tribunal. For reasons which are not clear to the Tribunal, the applicant has elected not to do so.

26. In the circumstances, the Tribunal is satisfied that the applicant is not the subject of a nomination which has been approved by the Minister for the occupation of conference and event organiser, as declared in the visa application and therefore does not comply with the requirements of the regulations and cl.186.223 is not met.

27. 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

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

    Alan McMurran
    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.