DESHAM (Migration)

[2019] AATA 740

DESHAM (Migration) [2019] AATA 740 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAI CHAND DESHAM

CASE NUMBER:  1731892

HOME AFFAIRS REFERENCE(S):           BCC2016/3648157

MEMBER:Alan McMurran

DATE:7 March 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 07 March 2019 at 11:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – subject of an approved nomination – nomination application refused by Department delegate – 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 Immigration and Border Protection on 28 November 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 2 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 System Administrator.

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. The applicant appeared before the Tribunal on 28 February 2019 in a multi-application hearing list, to give evidence and present arguments. The Tribunal received oral evidence from the applicant by telephone, as he was in India at the time of the hearing. On 26 February 2019, the applicant had sent an email to the Tribunal, which states as follows:

   “Thank you for the response and thanks for giving me opportunity to respond the hearing over the phone. I am more than happy to continue my hearing over the phone and I will make sure I am available on the given time. My contact number in India is (number provided).”

7. The applicant did not require an interpreter and the conversation was conducted in English. The Tribunal was satisfied that the applicant understood the dialogue during the hearing, which the applicant himself confirmed.

   Background

8. The applicant is a 34-year-old citizen of India. The applicant first arrived in Australia on 21 September 2008 as a student. The applicant was issued a 457 visa on 31 May 2014 expiring 31 May 2018. The applicant is currently on a bridging visa, pending determination of the visa application and this review. The applicant has no dependents in Australia.

9. The applicant has sought employment with the nominator, Python Technology, as a system administrator, and the applicant has qualifications with a Bachelor degree in Science, Business or Technology obtained in India in 2008 and a Masters of Information and Technology obtained from Latrobe University in 2010.

10. According to the applicant’s information provided to the Department, and his resume, the applicant has been employed by the nominator since 23 April 2013 in the role of system administrator.

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 subject to a nomination approved by the Minister.

    Nomination of a position

13. 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.

14. 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.

15. For the purpose of this review, the Tribunal has had access to electronic documents from the Department’s file and to the Tribunal’s file, together with the oral information obtained from the applicant at the hearing. The applicant informed the tribunal that he had been working for the nominator, Python Technologies, at Burwood in Sydney since April 2013. The applicant said he had been working in the position of ICT support technician. He said that he had met all his obligations as an employee and does not understand why the nomination had not been approved.

16. The Tribunal asked him if he had communicated with the employer about the refusal of the nomination. The applicant said he had worked hard and he did not know why the nomination had been refused. He said that the nominator had simply told him that it was refused, had not provided any reasons, and told him he should apply to the Tribunal for review. He said they had not taken any other action and had not informed him what in fact they were doing about his position. He said they told him that it is “not in our hands” and that it was up to the applicant to proceed with the matter through review.

17. The Tribunal explained to the applicant it was necessary for him to have an approved nomination in order for his visa to be considered, and without the approved nomination, his visa application could not succeed. The applicant said that he had made no other visa applications and had not sought advice. He had forwarded some information to the Tribunal concerning his payslips to evidence his employment with the nominator.

18. The Tribunal acknowledged receipt of that information on 16 December 2018 and which included a copy of a letter from the Australian Computer Society, a reference from Python Technologies dated 27 October 2017, pay advice records for 2017, an employment contract letter dated 21 February 2014 with the nominator and a copy of the applicant’s resume. The Tribunal noted the resume says the applicant joined the nominator as a computer network and system engineer on 22 October 2012, working at Belmore in Sydney. The applicant said he had no other information to provide and did not want an adjournment.

19. The applicant said by way of background that he was in India at present because his father was very sick, as evidenced by the medical information which he provided to the Tribunal on 20 February 2019. He said that he was happy for the hearing to be conducted on the telephone and was not seeking any delay. The Tribunal invited the applicant to comment on the fact that the refusal of the nomination meant that there was no position nominated for him and in respect of which an application had been approved by the Minister, and those particulars were information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The applicant responded in summary by saying he did not understand why the nomination had not been approved and he had received no explanation from the nominator.

    Findings

20. The Tribunal is satisfied that the applicant has made the application for the visa as set out above.

21. The Tribunal is further satisfied that the nominated position in respect of which the nominator sought approval was refused by the Department delegate.

22. The Tribunal finds there is no position to which the application relates which is the subject of a nomination approved by the Minister. The Tribunal is also satisfied that no review has been sought of the refusal of the nomination and there is no other application presently underway by the applicant or in respect of which the applicant has sought review.

23. The Tribunal finds it has some empathy for the applicant who has not done anything wrong in relation to his employment or as regards his own application for a visa. The Tribunal is also satisfied however that it would be futile to remit the matter to the Department where there is no nomination approved by the Minister and no application for review of any decision or any further application still under consideration by the applicant. In such circumstances, and where the Tribunal has no discretion, the applicant is unable to satisfy the criteria in the sub-regulation.Therefore, the Tribunal finds that cl.186.223 is not met.

24. 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

25. 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.