Harpreet Kaur (Migration)

[2020] AATA 5286

Harpreet Kaur (Migration) [2020] AATA 5286 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur
Mr Rasaal Singh
Master Aaronjot Singh Bhullar

CASE NUMBER:  1809458

HOME AFFAIRS REFERENCE(S):          BCC2017/2130086

MEMBER:Wan Shum

DATE:13 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2020 at 9:25am

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
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 5 April 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 16 June 2017. 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.

3. 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 Cook. The applicant had been identified in an application for the approval of the nomination of a Cook by G R Brothers Pty Ltd (the nominator) trading as The Real Taste Restaurant and Cafe made on 16 June 2017.

4. The nominator’s application was not approved and consequently the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

5. Both the nominator and the applicant sought review of these decisions and were represented in relation to the review by the same registered migration agent.

6. The Tribunal held a hearing by phone with the applicant on 20 October 2020. The Tribunal discussed with her information that it had received from the nominator that it was no longer operating the business. She confirmed that she was no longer working for them as they had closed the restaurant and she was now living in another state, Tasmania.

7. Following the hearing, the Tribunal wrote to the applicant inviting her to comment on or respond to information that it had made a decision not to approve the nomination made by the nominator and that there was no evidence before the Tribunal of an approved nomination to which Mrs Kaur has been identified. The Tribunal did not receive a response to that letter. For the reasons that follow, the Tribunal has decided to affirm the matter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is that the nomination of the position of Cook that was made by the nominator and for which the applicant was identified was not approved. This was the position to which the current visa application relates.

9. This means that the applicant does not meet the requirements of being the subject of an approved nomination as required and cl.186.223 is not met.

10. 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

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

    Wan Shum
    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.