Dhingra (Migration)

[2020] AATA 5653

Dhingra (Migration) [2020] AATA 5653 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Himanshu Dhingra
Mrs Kanika Dhingra

CASE NUMBER:  2001867

HOME AFFAIRS REFERENCE(S):          BCC2019/2797757

MEMBER:Mark Bishop

DATE:25 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2020 at 10:25am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Hairdresser – no approved nomination – applicant sought a further sponsor – request for an in-person hearing – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; 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 14 January 2020 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 30 May 2019. 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 the Temporary Residence Transition stream to work in a nominated position.

5. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted by his Migration Agent (MA).

6. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 3 December 2019 the nomination lodged by SEKHON BROS PTY LTD being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Immigration and Border Protection.

7. The applicant provided a copy of the decision record to the Tribunal. The decision record outlined the background to the review application and correspondence from the applicant to the Department and his request for a further 6 to 12 months to arrange a further sponsor. The date of the decision record was 14 January 2020.

8. In this case the Tribunal formally wrote to the review applicant on 23 October 2020 pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

9. On 6 November 2020 the applicant wrote to the Tribunal advising he believed SEKHON BROS PTY LTD was under administration by the ATO, he regularly attended for work, the lack of information from his employer, his life in Australia since 2011, his lack of comfort with a phone hearing and a request for an in person hearing.

10. The Tribunal considered this request. Tribunal processes, as advertised on the AAT website, the then widespread community transmission of Covid-19, quarantine requirements mandated by various governments in Australia but particularly NSW and Victoria, travel restrictions, the health and safety of the applicant his family and Tribunal staff  the satisfactory experience of the Tribunal with phone hearings over lengthy periods of time both pre and post the spread of Covid-19 the absence of complaints or adverse comment concerning phone hearings, the express provision of the Act, the futility of the nominee application and the lack of particulars concerning lack of comfort with the proposed phone hearing and in particular the explicit detail set out in COVID-19 special measures practice direction - Migration & Refugee [RTF, 2.3MB] and

    Factsheet - Special measures during the COVID-19 pandemic [PDF, 96KB] as published on the AAT website and provided to the applicant on 9 November 2020 caused the Tribunal to advise the applicant the request for an in person hearing  was refused.

11. The applicant appeared before the tribunal on 25 November 2020 to give evidence and present arguments.

12. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

14. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

    ·In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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. On 16 October 2020 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 186 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator SEKHON BROS PTY LTD The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 3 December 2019.

    ·It is a requirement for the grant of a Subclass 186 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn (cl 186.233).

    ·The Tribunal’s records indicate that the nominator did not lodge an application for review of the Department’s decision to refuse the nomination..

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 186 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 186.233. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 186 visa.

16. You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 6 November 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

17. The applicant responded to this Request for Information. See paragraphs 7 to 9 above.

18. In evidence to the Tribunal the applicant advised he was aware that the nomination referred to in paragraph 15 above had been refused and he could not provide a current nomination to the Tribunal. He further advised his employer had not informed him of this decision at the right time as he would have been given 60 days to find a new employer. The applicant had previously made a written submission to this effect. The Tribunal has considered all relevant matters in this review application. The Tribunal notes this review application is a futile application as there is no evidence of a current nomination before the Tribunal,

19. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination has been withdrawn and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 186.233.

20. Therefore, cl.186.233 is not met.

    Secondary Applicant

21. The secondary applicants are member of the family unit of the applicant. They are not the members of the family unit who holds the appropriate visa and hence do not meet the criteria set out in cl.186.311.

    CONCLUDING PARAGRAPH (ALL ISSUES)

22. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop

    
    

    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.