Gurpreet Kaur (Migration)

[2023] AATA 376

Gurpreet Kaur (Migration) [2023] AATA 376 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur
Mr Gurdeep Singh
Miss Harnoor Kaur
Master Gurfateh Singh

REPRESENTATIVE:  Ms Nishta Ramnoruth

CASE NUMBER:  1926513

HOME AFFAIRS REFERENCE(S):          BCC2018/2155636

MEMBER:Terrence Baxter

DATE:2 March 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 02 March 2023 at 2:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – subject of approved position nomination – refusal of related nomination application affirmed – no response to invitation to comment – members of family unit – refusal decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 359C(2), 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 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 Home Affairs on 12 September 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 May 2018. 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 (Cth) (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 for Scherhazade Restaurants Pty Ltd (the nominator).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 19 July 2019 and that accordingly the applicant did not satisfy cl 186.223(2) and did not meet cl 186.223 as a whole as required.

6. The delegate also found that the second named, third named and fourth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl 186.311) requiring each of them to be a member of the family unit of a person who has met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 20 September 2019.

8. The applicant appeared before the Tribunal by video conference on 16 November 2022 to give evidence and present arguments. The hearing was a joint hearing with the hearing of an application for review of a decision to refuse the nomination application by the nominator. The Tribunal also received oral evidence from Mr Akhter Shaikh, the authorised representative of the nominator by video conference.

9. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 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 video conference.

10. The applicants were represented in relation to the review by their legal representative, Ms Nishta Ramnoruth, of Migration Guru Pty Ltd of Brisbane, from 4 November 2022. Ms Ramnoruth attended the Tribunal hearing by video conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. 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.

14. 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.

15. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the position of Cook approved, with the applicant as nominee, on 18 May 2018. The nomination application was refused on 19 July 2019 and the nominator sought review of that decision with the Tribunal on 8 August 2019.

16. On 7 February 2023, the Tribunal affirmed the decision not to grant the nomination application.

17. On 10 February 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 7 February 2023 the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Scherhazade Restaurants Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Gurdeep Singh, Master Gurfateh Singh and Miss Harnoor Kaur do not meet the secondary visa criterion 186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 24 February 2023.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has been received by the Tribunal at the time of this decision.

19. Where a review applicant is invited to comment on or respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(2) of the Act.

20. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 17 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 12 September 2019 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 10 February 2023 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 16 November 2022 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 10 February 2023 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cls 186.223 and 186.311 of Schedule 2 to the Regulations.

22. The Tribunal notes that the application for nomination for the position of Cook has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 186.223(2) is not met.

23. Therefore, cl 186.223 is not met in respect of the applicant.

24. 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.

25. In relation to the second named, third named and fourth named applicants, the Tribunal notes that cl 186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa and is not the holder of a Subclass 186 visa, it follows that the second named, third named and fourth named applicants do not satisfy the requirements of cl 186.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    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.