Ghans (Migration)

[2021] AATA 2516

Ghans (Migration) [2021] AATA 2516 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Mahinderjeet Kaur Ghans
Mr Barjinder Singh

CASE NUMBER:  1811850

HOME AFFAIRS REFERENCE(S):          BCC2016/2443685

MEMBER:Amanda Ducrou

DATE:22 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 June 2021 at 5:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
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 Home Affairs on 12 April 2018 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 22 July 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, Bassi Corporation Pty Ltd, was refused by the Department and, as such, there is no approved nomination. The decision to refuse the nomination lodged by Bassi Corporation Pty Ltd was made by a delegate of the Minister for Home Affairs on 6 March 2018.

6. The Tribunal received an application for review from the applicants on 26 April 2018. The Tribunal received a copy of the delegate’s decision record with the application. The applicants are represented in relation to the review by their registered migration agent, Mr Sobaran Singh.

7. On 29 April 2021 the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The letter was sent by email to the applicants via their representative at the email address provided in connection with the review.

8. The letter provided particulars of the information, namely that the nominator had sought review by the Tribunal of the decision made by the delegate to refuse the nomination application made by Bassi Corporation Pty Ltd but the Tribunal had affirmed that decision, meaning that the nominator’s application for the nominated position has not been approved. The Tribunal’s letter explained that this information is relevant to the review because it is a requirement for the grant of the visas that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relies on this information in making its decision, it may find that the position specified in the visa application is not the subject of an approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must then affirm the decision under review.

9. The Tribunal’s letter invited the applicants to provide their comments or response by 13 May 2021. The letter noted that the applicants could request an extension of time provided that any such request was received by 13 May 2021 and went on to explain that if the applicants’ comments or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain their views on the information and that they would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 13 May 2021 the Tribunal received an email from the applicant in response to the Tribunal’s letter of 29 April 2021. A letter dated 13 May 2021 from the applicant was attached to the email. In summary, the applicant’s letter provides information regarding her employment with Bassi Corporation Pty Ltd including the period of the employment and her position. The letter also sets out the applicant’s understanding of the reason for the refusal of the nomination application linked to her visa application and submissions from the applicant in support of her case and provides information in relation to the applicant’s current situation noting that the applicant has made an application for a Subclass 190 visa which has not been finalised. The applicant asked the Tribunal to hold her review in abeyance pending the finalisation of her Subclass 190 visa application.

11. On 14 May 2021 the Tribunal wrote to the applicants and invited them to appear before the Tribunal on 4 June 2021 by video conference via Microsoft Teams to give evidence and present arguments. The invitation was sent by email via the applicants’ representative at the email address provided in connection with the application for review. The letter confirmed that the Tribunal had received the applicants’ email of 13 May 2021 requesting that the review be held in abeyance and that the email was referred to the Presiding Member. The Tribunal’s letter advised the applicants that having regard to the objective of the Tribunal in s 2A of the Administrative Appeals Tribunal Act 1975 which provides that in carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is, amongst other matters, fair, just, economical, informal  and quick, the Presiding Member had decided to proceed to invite the applicants to appear before the Tribunal on 4 June 2021 to give evidence and present arguments.

12. On 20 May 2021 the Tribunal received the applicants’ response to the hearing invitation. The response confirmed that the applicants wished to participate in the hearing and that the applicants’ representative would not be participating in the hearing. The applicants appeared before the Tribunal on 4 June 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video conference via MS Teams video. The applicant participated in the hearing via MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference via MS Teams video and MS Teams audio, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective (as already set out) and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

13. Ms Kaur confirmed at the commencement of the hearing that her representative, Mr Singh would not participate in the hearing and that she wished to proceed with the hearing in his absence. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether there is an approved nomination.

16. At the hearing Ms Kaur confirmed that she had read the delegate’s decision record and that she understands that the delegate made the decision to refuse to grant the visas because the delegate found that her employer’s (the nominator’s) restaurant business was not strong enough financially to support her continuing to work there. Ms Kaur also confirmed that she is aware that the AAT has affirmed the decision to refuse the nomination application linked to her visa application and that there is no application pending before the AAT for review of the decision to refuse to approve the nomination application.

17. Ms Kaur told the Tribunal that it is not her fault and is not anything to do with her that the nomination application linked to her visa application was refused. Currently, and for almost two years she has been working as a personal carer in a nursing home in regional Victoria. She is on maternity leave as she is nine months pregnant. Ms Kaur asked the Tribunal to defer making its decision until after the Subclass 190 visa application she has made has been determined. She has been waiting for 18 to 19 months for her application to be dealt with and as she is expecting her baby, she is not able to travel overseas.

18. The documentary evidence is consistent with the oral evidence of Ms Kaur of the circumstances that led to the decision being made to refuse to grant the Subclass 186 visa to her. It is also consistent with Ms Kaur having worked in the nominator’s business as she described.

19. The Tribunal accepts that the circumstances that led to the refusal of the application for the nomination of the position linked to Ms Kaur’s application for the Subclass 186 visa are entirely beyond the applicants’ control. The Tribunal appreciates and considers it understandable that the applicants are upset and extremely distressed by the situation that this has placed them in and that the position is even more difficult for Ms Kaur given her current circumstances. However, it remains the case that the application for the nomination of the position related to Ms Kaur’s Subclass 186 visa application has not been approved and that the decision to refuse to approve the nomination application has been affirmed by the AAT with there being no review pending before the Tribunal of the decision. This means that the matter has been finalised.

20. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 186 visa under cl 186.223(2) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. It is also the case in relation to the application made by the second named applicant (the applicant’s partner) for the Subclass 186 visa, that the requirements of cl 186.311 of the Regulations must be met which require the second named applicant to be a member of the family unit of a person (in this case Ms Kaur) who holds a Subclass 186 visa. Ms Kaur does not hold a Subclass 186 visa.

21. The Tribunal has no discretion in relation to the requirement that the nomination application linked to Ms Kaur’s visa application be approved. The Tribunal appreciates why Ms Kaur asked the Tribunal to defer making its decision in this review pending the finalisation of her Subclass 190 visa application. However, the Tribunal notes that the application that Ms Kaur made for the Subclass 190 visa is a separate application to the application for the Subclass 187 visas with separate and distinct requirements that must be met in order for the visa to be granted. The applicable criteria for the grant of the Subclass 187 visa application that Ms Kaur made on 22 July 2016 cannot be satisfied by the lodgement of any subsequent visa application. In the circumstances and having regard to the objective of the Tribunal in undertaking this review the Tribunal declined to defer making its decision in the present matter any further pending the finalisation of the Subclass 190 visa application.

    Nomination of a position

22. 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.

23. 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 reg 1.13A and reg 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.

24. In this case the applicant applied for a Subclass 186 visa on the basis of the nomination application lodged by Bassi Corporation Pty Ltd in respect of the applicant, being the nomination referred to in cl 186.22(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 21 July 2016. The nomination application was refused by a delegate of the Minister on 6 March 2018. As a consequence, on 12 April 2018 the applicant’s Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

25. The decision of the delegate to refuse the nomination application lodged by Bassi Corporation Pty Ltd was affirmed by the Tribunal on 28 April 2021. This means that the matter has been finally determined and there is no approved nomination as required under cl 187.223(2) of Schedule 2 to the Regulations. As a result, the requirement in cl 187.223(2) of Schedule 2 to the Regulations is not satisfied.

26. Therefore, cl 186.223 is not met.

27. The Tribunal finds that the second named applicant does not meet cl 186.311, which requires them to be a member of the family unit of a person who holds a Subclass 186 visa. There is no evidence before the Tribunal that establishes that the second named applicant meets the primary visa criteria.

28. The applicants have 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

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

    Amanda Ducrou
    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.