DHALIWAL (Migration)

[2020] AATA 3063

DHALIWAL (Migration) [2020] AATA 3063 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lovedeep Singh DHALIWAL
Mrs Pardeep Kaur DHALIWAL

CASE NUMBER:  1728152

HOME AFFAIRS REFERENCE(S):          BCC2017/1266975

MEMBER:Penelope Hunter

DATE:23 July  2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2020 at 11:53am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related nomination application refused – application for review of refusal withdrawn – second applicant currently on student visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), 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 25 October 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 4 April 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 case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Software Tester on the basis of a nomination by his employer CN GLOBAL PTY LTD. The second named applicant has applied for the visa on the basis of being a member of the family unit of the applicant.

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 nomination lodged by CN GLOBAL PTY LTD was refused by the delegate on behalf of the Minister.

6. The Tribunal received an application for review of the delegate’s decision from the applicants on 14 November 2017. The applicants were represented in relation to the review by their registered migration agent.

7. On 29 April 2020, the Tribunal wrote to the applicants pursuant to the provisions of s.359A of the Act inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to CN GLOBAL PTY LTD withdrawing their review application before the Tribunal of the Departmental decision. The Tribunal explained that the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl. 186.223(2) of Schedule 2 to the Regulations.

8. On 13 May 2020, the Tribunal received a letter of submission from the agent for the applicants. The submission set out that the applicant was disappointed at his employer’s decision to withdraw the nomination and this placed the applicant in a difficult position outside his control. It was further submitted that the second named applicant was currently the holder of a student visa due to expire in July 2021 and if the application was not approved the applicant and second-named application would be separated which was not in their best interests. It was further argued that due to COVID-19 travel restrictions that the applicant may have difficulty departing Australia in accordance with a relevant bridging visa. The applicant requested additional time to assess his future options prior to a Tribunal decision.

9. The Tribunal invited the applicants to appear before it on 3 June 2020, the applicants were invited to appear before the Tribunal by telephone to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants’ representative also participated in the hearing.

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 nomination associated with the visa application is approved.

    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. In this matter the applicant applied for the visa on the basis of a nomination in the position of Software Tester by CN GLOBAL PTY LTD. As set out in the decision of the delegate submitted by the applicants, this nomination was refused by the Department on behalf of the Minister on 22 September 2017.

15. As set out in the s. 359A letter sent to the applicants, on 22 April 2020, the Tribunal accepted a request from CN GLOBAL PTY LTD to withdraw their application for review of the Departmental decision. This means that the decision of the Department to refuse the nomination remains unchanged.

16. At the hearing the applicant spoke of his disappointment that his employer had decided not to continue the business and withdraw the review application. He claimed that the business had not been travelling well, and due to the impact of COVID-19 his employer being offshore it added to the difficulties of the business. He submitted, and the Tribunal accepts that these were circumstances outside his control. The applicant had an option of applying to be a dependent on the student visa of the second-named applicant, but he was concerned about the effect of any visa refusal on that application and also current travel restrictions limited his ability to travel offshore and apply for a further visa.

17. The Tribunal accepts that the COVID-19 pandemic has presented challenges for the applicant and second named applicant. However, this is not a matter in which the Tribunal has any discretion. It is accepted that travel restrictions may make it difficult for the applicant to depart Australia in a timely manner, but the limits on bridging visas and their possibility of extension is not an issue before the Tribunal to review. The disruption associated with the COVID-19 pandemic does not appear to be transitory and is not a reason to delay indefinitely a decision in this matter, and an indefinite adjournment is inconsistent with the Tribunal objective of providing a quick mechanism for review.

18. On the evidence before it the Tribunal finds that the relevant nomination by CN GLOBAL PTY LTD, the subject of the declaration when the applicant’s visa application was made has not been approved. This is an essential requirement for the grant of the visa that the applicant is seeking. It therefore follows that the applicant has not met cl.186.223(2) and cl. 186.223 is not met as a whole.

19. 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.

20. As the second named applicant had applied for the visa as a member of the family unit of the applicant  and because the applicant does not meet the primary requirement for the visa, and there is no evidence to suggest that the second named applicant meets the primary requirement for the visa, the Tribunal also affirms the decision in respect of the second named applicants

    DECISION

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

    Penelope Hunter
    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.