Hardeep Singh (Migration)

[2021] AATA 5632

Hardeep Singh (Migration) [2021] AATA 5632 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hardeep Singh
Mrs Rajinder Kaur Buttar

CASE NUMBER:  1816421

HOME AFFAIRS REFERENCE(S):          BCC2017/1396474

MEMBER:Terrence Baxter

DATE:31 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2021 at 10:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – sales and marketing manager – subject of approved position nomination – refusal of related nomination application affirmed after joint hearing – application made for judicial review of nomination decision – request for adjournment until judicial review determined – no information about likely timeframe – tribunal not required to indefinitely delay decision-making process – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(9), 65, 359A, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(1), (2), 186.311

Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b)

CASES

Huo v MIMA [2002] FCA 617

Manna v MIAC [2012] FMCA 28

Mora v MIBP [2018] FCA 1819

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 22 May 2018 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 17 April 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 (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 Sales and Marketing Manager for Energetic Cleaning Services Pty Ltd (the nominator).

5. The delegate refused to grant the visas on 22 May 2018 because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 17 April 2018 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 applicant could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her 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 5 June 2018.

8. The applicant appeared before the Tribunal by audio conference on 15 December 2020 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 of the nominator.

9. The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio 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 audio conference.

10. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the hearing by audio 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 r.1.13A and r.1.13B of the Regulations); 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 (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Sales and Marketing Manager approved, with the applicant as nominee, on 13 April 2017. The nomination application was refused on 17 April 2018 and the nominator sought review of that decision with the Tribunal on 3 May 2018.

16. On 15 February 2021, the Tribunal affirmed the decision not to grant the nomination application.

17. On 18 February 2021, 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 15 February 2021, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by Energetic Cleaning Services 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 Mr Hardeep Singh does not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mrs Rajinder Kaur Buttar does not meet the secondary visa criterion cl.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 her application.

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

    Your comments or response should be received by 4 March 2021.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. On 4 March 2021, the representative requested an extension of time to comment on or respond to the information in the Tribunal’s invitation because counsel had been briefed and the representative was awaiting advice. On 5 March 2021, the Tribunal advised the applicants, through the representative that, although the Tribunal did not consider that the request for extension disclosed a valid reason for extension of the time for response to the invitation, an extension of time until 9 March 2021 had been allowed.

19. On 9 March 2021, the representative provided to the Tribunal a submission from counsel advising that an application would be made for judicial review of the Tribunal’s decision to refuse the nomination application by the nominator. Counsel submitted that the deadline for lodging an application for judicial review of the nomination decision was 22 March 2021 and provided an undertaking by the representative that he would supply a stamped copy of the judicial review application prior to that date.

20. Counsel submitted that the decision in this matter should be adjourned until a judicial determination of the review of the Tribunal’s decision to affirm the refusal of the nomination application. He submitted that a flawed nomination refusal would lead to a flawed visa refusal and cited the decision of the Federal Court in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 in which Collier J (dealing with a Subclass 457 visa nomination) stated at [55]:

    However, in my view it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:

    ·Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. This was explained by the Tribunal itself in the visa decision at [12] and [16]. Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker – see cl 457.223(4)(a).

    ·As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made – being relevant in these circumstances to the employment of the first appellant by the Trust.

21. Counsel further submitted that at the very least, the Tribunal should make no decision in this matter before 22 March 2021, having regard to the undertaking that the representative would supply a stamped copy of the judicial review application prior to that date.

22. The Tribunal has acceded to the request to delay its decision until it has received evidence of the filing of the application for judicial review of the nomination decision. The applicant has provided evidence that an application was made on 19 March 2021 for judicial review of the Tribunal’s decision to affirm the refusal of the nomination application. The representative has renewed the application that the decision in this matter be delayed until the finalisation of the judicial review and undertook to advise the Tribunal when the judicial review was determined.

23. The Tribunal has carefully considered that application for adjournment. The Tribunal has considered the decision of the Federal Court in Mora and acknowledges what may be the impact on a decision to affirm the refusal of applicants’ visa applications in the event that the Tribunal’s decision to affirm the refusal of the nomination application is found to be invalid. However, this same situation applies in every case for related visa applicants where there is a judicial review of a decision to affirm a refusal of the relevant nomination application.

24. The copy of the application for judicial review provided by the applicants to the Tribunal was signed on behalf of the applicant for review but was not a sealed copy completed by a Court officer. The first court date for the application was not completed and accordingly, the Tribunal has no information before it regarding a likely timeframe for the determination of that application. Further, the Tribunal notes that, for the purposes of s,5(9) of the Act, the associated nomination application became “finally determined” on 15 February 2021 when the Tribunal affirmed the decision not to grant the nomination application. This situation may be distinguished from circumstances where, say, a decision is yet to be made on the nomination application.

25. To delay a decision in this matter would involve a delay for a possibly extensive period of time until determination of the review of the decision to affirm the refusal of the nomination application. The Tribunal has had regard to decisions in the matters of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where it has been held that the Tribunal is not required to indefinitely delay its decision-making process. The Tribunal has also had regard to the provisions of s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) which states that the Tribunal’s objective is to provide a mechanism of review that is fair, just, economical and quick.

26. Accordingly, the Tribunal has decided not 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 cl.186.223 and cl.186.311 of Schedule 2 to the Regulations.

27. The Tribunal notes that the application for nomination for the position of Sales and Marketing Manager 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.

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

29. 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.

30. In relation to the second named applicant, 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 applicant does not satisfy the requirements of cl.186.311. The Tribunal finds accordingly.

    DECISION

31. 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 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.