Jayawickrama (Migration)

[2023] AATA 952

Jayawickrama (Migration) [2023] AATA 952 (19 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dasuni Jayamali Jayawickrama
Mr Nuwan Chamara Balasuriya

CASE NUMBER:  1924822

HOME AFFAIRS REFERENCE(S):          BCC2018/4339704

MEMBER:C. Packer

DATE:19 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2023 at 2:03pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – chef – subject of approved position nomination – related nomination application refused and affirmed in separate review – applicant’s visa and work history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

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 3 September 2019 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 5 October 2018. 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 Direct Entry stream, to work in the nominated position of Chef. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the nomination by Urban Projuice Pty Ltd had been refused.

5. The applicants appeared by phone before the Tribunal on 19 April 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

7. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

8. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·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 reg 1.13A and reg 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.

9. The applicants departed Australia on 29 September 2020 to return to Sri Lanka.

10. On 5 October 2018 Urban Projuice Pty Ltd (the nominator) made an application listed as Direct Entry Nomination under the Employer Nomination Scheme (186 visa). The position was said to be Chef and nominated the applicant. However, on 1 July 2019 the delegate of the Minister rejected the nomination. On 9 July 2019 the nominator sought a review of the delegate’s nomination refusal decision (case number 1918381). However, on 12 September 2022 the Tribunal (differently constituted) affirmed the decision not to approve the nomination. This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns the applicant.

11. The Tribunal in a letter dated 21 March 2023 advised the applicant of the refused nomination. On 27 March 2023 the applicant responded with documents and information concerning her work and visa history in Australia. A submission stated in part that the applicant still wanted an opportunity to work as a chef in Australia.

12. At the hearing on 19 April 2023 the applicant discussed her work history in Australia. She argued it was not fair as when the refusal decision was made the restaurant was open and the decision was wrongly made. The secondary applicant discussed the severe negative effects the decision had on the applicant. The Tribunal advised that all the documents they had sent to the Tribunal would be sent to the Department. The Tribunal discussed the refused nomination and pointed out that she was not able to meet the requirement of cl.186.233(3).

13. In sum, the Tribunal finds that cl 186.233(3) is not met.

    Conclusion

14. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    C. Packer
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.