Gurwinderjeet Kaur (Migration)

[2020] AATA 412

Gurwinderjeet Kaur (Migration) [2020] AATA 412 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurwinderjeet Kaur
Mr Nadeem Ahmad

CASE NUMBER:  1819783

HOME AFFAIRS REFERENCE(S):          BCC2017/2340947

MEMBER:Cathrine Burnett-Wake

DATE:18 February 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 18 February 2020 at 9:53am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s position nomination refused – refusal affirmed on review – no discretion to consider circumstances leading to the refusal – member of a family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 395A

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 29 June 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 30 June 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager with Esifa Consultancy and Recruitment Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) as the nomination by Esifa Consultancy and Recruitment Pty Ltd for the position of Customer Service Manager was not approved.

6. On 2 December 2020 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. That adverse information being that the application for approval of the nominated position made by Esifa Consultancy and Recruitment Pty Ltd (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision with the AAT, but the application for review had recently been affirmed. The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

7. The applicant responded to the letter and requested an opportunity to explain her case at a hearing and to discuss new options regarding her visa as she is looking for a new nomination.

8. The applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicants were represented in relation to the review by their registered migration agent, whom however, was not present for the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

12. 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.

13. 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.

14. At hearing the applicant conceded that there was no nomination by Esifa Consultancy and Recruitment Pty Ltd. However, that she wished to explain to the Tribunal the circumstances that led to the refusal.

15. The applicant explained that she felt the issues arising from her situation were because her employer may not have been pleased with her extended leave on medical grounds. Further, that she felt her employer also possibly held prejudice views against her relating to her and her husband’s religious beliefs. The applicant also outlined that she was looking for a new nominator.

16. The Tribunal discussed with the applicant that its view was that this current visa application under review could not be linked with any subsequent nomination application if she were able to find a new nominator.

17. The Tribunal also explained to the applicant that it had no discretion to consider the circumstances that led to the nomination being refused and the Tribunal’s subsequent decision at merits review to affirm the application, and that it was solely determining whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal was there was no approved nomination.

18. The facts are not under dispute, and both parties agree that there is no approved nomination.

19. Therefore, cl.186.223 is not met.

20. 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.

21. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visa to the second named applicant as he does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that he can meet the primary criteria in his own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.