Jaspreet Singh (Migration)

[2020] AATA 851

Jaspreet Singh (Migration) [2020] AATA 851 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Jaspreet Singh
Mrs Shallu Anand
Master Ahaan Sarwal
Ms Ellie Sarwal

CASE NUMBER:  1826043

HOME AFFAIRS REFERENCE(S):          BCC2015/2899145

MEMBER:Phoebe Dunn

DATE:19 March 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 19 March 2020 at 8:57am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination ­­– nomination refused – 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 17 August 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 5 October 2015. 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 Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination application, being the application referred to in cl.186.223(1), was refused by a delegate of the Minister on 9 July 2018, and as such there was no approved nomination.

6. The applicants appeared before the Tribunal on 15 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Arun Chauhan, a Director of the nominating business. The review of the refusal of the related nomination application was heard at the same time. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Nilesh Bansal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. At the hearing, the Tribunal advised the applicant that the review of the decision to refuse the Subclass 186 visa application will turn on whether the decision to refuse the related nomination application is set aside by the Tribunal or affirmed on review. The Tribunal noted that if the decision is affirmed the applicant would get a further opportunity to comment or respond.

11. The Tribunal took evidence from the applicant regarding his employment.  The applicant stated that he understood why his visa application had been refused, and that this was because the company structure of the nominating business had changed which resulted in the nominating business not meeting the nomination requirements, and the nomination being refused.  The applicant stated that he has been in Australia for 13.5 years, initially on a student visa to study hospitality management.  He stated that he started working full-time for the nominating business in 2013, and has worked there continuously since that date. He has taken annual leave, but has never taken unpaid leave. He is responsible for the curries, and if busy, helps to look after the Tandoor. He also assists with the food truck on weekends when they attend major events such as the Avalon Air Show and the Australian Grand Prix.  If he works overtime, he is paid overtime or takes time in lieu.

12. The delegate refused the nomination application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(b)(i) of the Regulations because the delegate found that the nominator for the Subclass 186 visa was not the standard business sponsor who last nominated the Subclass 457 visa holder in a nomination, and as such this subregulation could not be satisfied. On 3 February 2020, the Tribunal affirmed the decision on review.

13. By letter dated 5 February 2020, the Tribunal wrote to the applicants under s.359A of the Act, inviting the applicants to comment on or respond to information that, subject to any comments or response, would be the reason or part of the reason for affirming the decisions under review.  The Tribunal noted that it had not made up its mind about the information, provided details of the particulars of the information, and explained the consequences of it. 

14. In its letter, the Tribunal noted that on 9 July 2018, a delegate of the Minister for Immigration refused the nomination application nominating the applicant to work in the nominated position of Cook (ANZSCO 351411), and that on 3 February 2020, the Tribunal affirmed the decision to refuse the nomination application.  The Tribunal noted that this meant that the nomination had not been approved as required under cl.186.223(2) of the Regulations, and that this information was relevant to the review because it is a requirement for the grant of the Subclass 186 visa application that the related nomination application has been approved and that the applicant is the subject of a current approved nomination. The Tribunal stated that if it relies on this information in making its decision it may find that the applicant is not the subject of a current approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

15. The Tribunal stated in the letter that this would be the reason or part of the reason for affirming the decision under review and invited the applicants to comment on or respond to the information, or seek an extension of time to comment on or respond to the information, by 19 February 2020.  As at the date of this decision, the Tribunal has not received a response from the applicant.

    Nomination of a position

16. 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.

17. 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.

18. On 9 July 2018, a delegate refused the related nomination application nominating the applicant in the nominated position of Cook, and on 3 February 2020, the Tribunal affirmed the decision on review.  This means that there is no approved nomination as required by cl.186.223(2), and accordingly the applicant does not meet the requirements of cl.186.223(2).

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 only basis of the applications of the second, third and fourth named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second, third and fourth named applicants must also be affirmed because they do not satisfy cl.186.311.

    DECISION

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

    Phoebe Dunn
    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.