Ghale (Migration)

[2018] AATA 5589

Ghale (Migration) [2018] AATA 5589 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jay Raj Ghale
Ms Jasmin Lama

CASE NUMBER:  1700723

HOME AFFAIRS REFERENCE(S):           BCC2015/2266957

MEMBER:Mr S Norman

DATE:28 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2018 at 10:00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Program or Project Administrator – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls 186.223, 186.311

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 3 January 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 7 August 2015. 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 the Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator (ANZSCO: 511112).

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 related nomination approval was refused.

6. The applicants appeared before the Tribunal on 7 November 2018; though only the first named applicant provided evidence and presented arguments. The Tribunal also received oral evidence from Mr Anish MAHARAJ (the business nominator).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the requirement in cl.186.223(2) were met.

   Nomination of a position

9. 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.

10. 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.

11. On 1 November 2016, the nomination application lodged by A AND A (SYDNEY) PTY LTD (the ‘nominator’), being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister. On 25 November 2016, the applicants were invited to comment on the refusal of the nomination. The applicants were invited to comment within 28 days. On 23 December 2016, the applicants authorised recipient responded by email. They attached a completed copy of a Tribunal electronic lodgement form seeking review of the nomination application refusal, and an ‘acknowledgement of application’ letter from the Tribunal, and an accompanying tax invoice. The applicants also requested the delegate delay making their decision pending the outcome of the merits review application to the Tribunal. However, the delegate noted the nomination approval application had been refused on 1 November 2016, and therefore, the requirements of cl.186.223(2) were not met; and that cl.186.223 was not met.

12. Next, the delegate assessed whether the criteria for the grant of the Employer Nomination (subclass 186) visa was satisfied with in any other stream within the visa subclass. The delegate assessed the application under the Direct Entry stream. The delegate then noted that pursuant to cl.186.233(2)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(4)(h)(1) or r.5.19(2) as in force on 1 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant does not meet cl.186.233, and the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Direct Entry stream are not satisfied.

13. Next, the delegate assessed the applicant’s claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant was determined not to meet cl.186.242. Since that clause was not satisfied, the delegate found the applicant did not meet the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Agreement stream.

14. Next, the delegate said the dependent applicant had made a valid application combined with the applicant. However, the dependent applicant had not made any claim towards satisfying the primary criteria for the visa. Since neither the applicant nor the secondary applicant had met cl.186.223 & 233 & 242, neither applicant met the secondary criteria in cl.186.311. The Employer Nomination Scheme (subclass 186) visa application was therefore refused.

15. By s.359A letter dated 13 November 2018 (dispatched by email), the applicant was advised that subject to their comments or response, the following may be the reason, or a part of the reason, for affirming the decisions under review:

    ·On 12 November 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (A & A (SYDNEY) PTY LTD).

    The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 27 November 2018.

16. By email dated 27 November 2018, the applicant noted the nomination approval decision had been affirmed; that he had resided in Australia since 2008; that he had studied and worked in Australia; that he and his wife are expecting a child in January 2019; he requested the Tribunal reconsider its decision; and that he proposes to pursue judicial review.

17. The Tribunal acknowledges the applicant’s concerns. However, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.186.223(2) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.186.223 is otherwise met. Therefore, cl.186.223 is not met.

18. Next, cl.186.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As neither the first named applicant, nor any family member, has satisfied the primary criteria for the grant of the subclass 186 visa, I am not satisfied that cl.186.311 has been met.

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.

    DECISION

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

    Mr S Norman
    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.