Ekanayake (Migration) - [2020] AATA 843

Ekanayake (Migration) [2020] AATA 843 (16 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Saliya Ananda Bandara Ekanayake
Mrs Lakmini Priyangika Ekanayake
Mr E W M Sachintha Ranuka Bandara Ekanayake
Mr E W M Malintha Vihanga Dandara Ekanayake
CASE NUMBER:  1801607
HOME AFFAIRS REFERENCE(S):          BCC2017/2256562
MEMBER:Antonio Dronjic
DATE:16 March 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 16 March 2020 at 4:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chief Information Officer – subject of an approved nomination – nomination refused – s 359A invitation to comment or respond – request for extension of time – request declined – hearing by telephone conferencing – claimed self-quarantine – applicant’s movement records – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233
Singh v MIBP [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 a Chief Information Officer (ANZSCO 135111).
The delegate refused to grant the visas because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, IT Consumable Solutions Pty Ltd was refused by the Department on 23 November 2017. The delegate also refused to grant subclass 186 visas to the secondary applicants on the grounds that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.
The applicants applied to this Tribunal for review of the primary decision on 22 January 2018 and were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ekanayake (Migration)

Details

AGLC: Ekanayake (Migration) [2020] AATA 843
Case: [2020] AATA 843
Decision Date: 16 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) in its Temporary Residence Transition stream. The primary applicant, identified as a Chief Information Officer, had an approved nomination that was subsequently refused. The Tribunal also reviewed the applications of the second, third, and fourth named applicants, who were family members.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for a Subclass 186 visa under the Temporary Residence Transition stream, specifically clause 186.223. This clause requires, among other things, that the nominated position has been approved and has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval. The Tribunal also had to determine if the secondary applicants met the criteria to be included as family members of a Subclass 186 visa holder, or if they qualified in their own right.

The Tribunal reasoned that the primary applicant failed to satisfy clause 186.223 because the nominated position had not been approved at the time of the Tribunal's decision. Consequently, the primary applicant did not meet the requirements for the visa. The Tribunal further found that the secondary applicants did not meet the criteria for inclusion as family members, nor had they provided evidence to satisfy the primary visa criteria in their own right.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to any of the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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. 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. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by IT Consumable Solutions Pty Ltd on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 186.223 at the time of its decision. 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. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that the second, the third and the fourth named applicants meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Antonio DronjicMemberATTACHMENT A186.223(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.

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that the second, the third and the fourth named applicants meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Antonio DronjicMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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