Jaspreet (Migration)

[2018] AATA 1807

Jaspreet (Migration) [2018] AATA 1807 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaspreet Jaspreet
Mrs Mamta Rani

CASE NUMBER:  1732869

DIBP REFERENCE(S):  BCC2017/1838756

MEMBER:Hugh Sanderson

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 10:22am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 186 (Employer Nomination Scheme) visa – Temporary Residence stream – Nominated position of customer service manager – Nomination application affirmed upon review by Tribunal – New nomination not relevant to the current visa application – Decision under review affirmed

LEGISLATION
Migration Act 1958 ss 65, 359A
Migration Regulations 1994 r 5.19 Schedule 2 cl 186.223

CASES
Kaur v MIBP [2017] FCCA 564

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 Immigration and Border Protection on 5 December 2017 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 24 May 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 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. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(1) of Schedule 2 to the Regulations because the nomination application of the applicant sponsor had been refused.

   Background

6. The applicant applied for the visa on the basis of his employment as a customer service manager by his sponsor, K P Sidhu Investments Pty Ltd. The second named applicant has applied for the visa on the basis of being a member of the family unit of a person who meets the primary criteria.

7. The Department refused the nomination application of K P Sidhu Investments Pty Ltd on 22 August 2017. The applicant was given an opportunity to comment on or respond to this information. The applicant claimed that as a new nomination application had been lodged by K P Sidhu Investments Pty Ltd on 23 November 2017 that the Department should wait until that nomination application had been finalised.

8. The delegate who considered the application noted that the Subclass 186 visa does not provide scope for new nominations to be lodged against visa applications that are already lodged with the Department. As the position to which the visa application relates must be the position in relation to which the visa application declaration was made, the visa applicant cannot be considered against a different nomination application. As the nomination application which the visa application relates had been refused the current application was not the subject of an approved nomination. Accordingly, the delegate found the applicant did not meet the criteria in cl.186.223(2) and refused the application.

9. Both K P Sidhu Investments Pty Ltd and the applicant applied to the Tribunal for a review of the decisions of the Department to refuse the nomination application and the visa application.

10. The Tribunal issued a decision on 26 April 2018 affirming the Department’s decision to refuse the nomination application of K P Sidhu Investments Pty Ltd. On 27 April 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act with the information that the nomination application had been refused and this information would be the reason, or a part of the reason, for affirming the decision as the Tribunal may find the applicant does not meet the criteria in cl.186.223. The applicant was invited to comment on or respond to this information.

11. On 11 May 2018 the applicant responded by stating that in November 2017 the sponsor had lodged a subsequent nomination application for the position of customer service manager. The applicant asked the Tribunal not to make any decision in relation to his application until that nomination application had been finalised.

12. The applicant appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. Two of the applicant’s employers, Mr Singh and Mr Salindera, attended the hearing to be able to give evidence.

13. The Tribunal explained to the applicant the requirement for the nominated position to which the application relates must have been approved by the Department, or the Tribunal on review. The nomination application had been refused by the Department and that decision has now been affirmed by the Tribunal. No appeal had been lodged by the sponsor against the decision of the Tribunal to refuse the nomination application. Accordingly, it did not appear that the applicant could satisfy the criteria which required the applicant to be subject of an approved relevant nomination.

14. The applicant asked the Tribunal to delay any decision until the nomination application that was filed in November 2017 had been finalised.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant is subject of an approved nomination.

    Nomination of a position

17. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

18. The nomination application of the applicant’s employer, K P Sidhu Investments Pty Ltd, was refused by the Department and that decision has been affirmed by the Tribunal on review. There is no appeal by the sponsor against the decision of the Tribunal. As the applicant is not subject of an approved nomination the applicant does not satisfy the criteria in cl.186.223(2).

19. The applicant requested the Tribunal to delay any decision until after the Department had assessed the further nomination application filed by K P Sidhu Investments Pty Ltd in November 2017. The Tribunal does not consider it appropriate to delay making a decision in this matter until after the Department has finalised that nomination application. The Tribunal has not received any documentation or information as to the details of that application or the information provided by K P Sidhu Investments Pty Ltd in support of that application. It is speculative as to whether the Department would now approve that nomination application in light of previous nomination application having been refused. There is no information as to how long the Department requires before being able to finalise that application. Even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be relevant to the current visa application (see Kaur v MIBP [2017] FCCA 564).

20. For the above reasons, the Tribunal finds that the applicant is not the subject of an approved nomination and therefore cl.186.223 is not met.

21. 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.

22. The second named visa applicant has applied for the visa on the basis of being a member of the family unit of a person who meets the primary criteria. As the Tribunal has concluded that the first named applicant does not meet the primary criteria for the grant of the visa the decision to refuse the application of the second named applicant must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member