JASPREET SINGH (Migration)

[2017] AATA 2016

JASPREET SINGH (Migration) [2017] AATA 2016 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  JASPREET SINGH
Mrs RAJPREET KAUR

CASE NUMBER:  1610979

DIBP REFERENCE(S):  BCC2015/1602703

MEMBER:Bridget Cullen

DATE:23 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 October 2017 at 3:05pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – No approved nomination

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl186.223, r 1.13A and r 1.13B, 5.19(3), subcl 186.233(1), 186.233(3), 187.223

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 Immigration on 6 July 2016 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 to the Department of Immigration for the visas on 4 June 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 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 metal fabricator for Tong Metal. 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 of Schedule 2 to the Regulations. This was because the on 13 May 2016 the Department had refused the nomination application lodged by the applicant’s nominator, Tong Metal.

6. The applicant appeared before the Tribunal on 20 October 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. 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.

10. 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.

11. According to the primary decision record the applicant provided with the application for review, and confirmed by him at the hearing, Tong Metal had lodged its application for approval of an employer nomination in the Direct Entry stream for a Metal Fabricator.

12. In addition, and as set out in the primary decision record, on 13 May 2016 the Department refused the employer nomination lodged by Tong Metal. Notably, this was the nomination referred to in the applicant’s visa application for the purposes of subclause 186.233(1). The applicant confirmed these matters during his oral evidence before the Tribunal.

13. The Tribunal notes that the applicant also confirmed that he did not otherwise have an approved nomination by Tong Metal for the purposes of subclause 186.233(3). The applicant provided the Tribunal with a letter confirming that Tong Metal has lodged a new nomination application with the Department on 14 March 2017, but acknowledged that the nomination had not yet been approved.

14. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 ('Singh's case') the Full Federal Court considered the wording of clause 187.233, which is worded very similarly to clause 186.233. In Singh's case, the Court held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court found that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application.

15. As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the 'position' referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval.

16. As a consequence, the decision in Singh's case means that where the Department refuses a nomination, an applicant will not meet the requirements of clause 186.233 unless the original decision to refuse the nomination is set aside by the Tribunal on review.

17. In this case, the Tong Metal did not review the 13 May 2016 decision to refuse the nomination application.

18. Accordingly, on the basis of the evidence before it, the Tribunal finds that the Minister has not approved the nomination to which the applicant's visa application relates. Therefore, the Tribunal finds that the applicant does not meet the requirements of subclause 186.233(3) and, consequently, clause 186.233 at the time of decision.

19. 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.

20. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 186 visa as she 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 she meets the primary visa criteria for this subclass, or any other subclass within Class EN, in her own right.

    DECISION

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

    Bridget Cullen
    Member