Jhanji (Migration)

[2018] AATA 2662

Jhanji (Migration) [2018] AATA 2662 (4 June 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Jhanji
Mrs Maninder Kaur Jhanji
Master Aashish Aman Jhanji
Master Aryan Aman Jhanji

CASE NUMBER:  1726674

DIBP REFERENCE(S):  BCC2015/2778563

MEMBER:Cathrine Burnett-Wake

DATE OF DECISION:  4 June 2018

DATE CORRIGENDUM

SIGNED:21 June 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Page 4 at paragraph 20 and paragraph 21 of the Decision Record erroneously made reference to cl.186.233(3) and cl.186.233 respectively. This should be replaced to read cl.186.223(2) at paragraph 20 and cl.186.223 at paragraph 21.

Cathrine Burnett-Wake
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Jhanji
Mrs Maninder Kaur Jhanji
Master Aashish Aman Jhanji
Master Aryan Aman Jhanji

CASE NUMBER:  1726674

DIBP REFERENCE(S):  BCC2015/2778563

MEMBER:Cathrine Burnett-Wake

DATE:4 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 June 2018 at 3:11pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Employer Nomination Scheme – Subject of an approved nomination – Circumstances beyond control – Business closed down – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19, Schedule 2 cls 186.223, 183.311

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 17 October 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 23 September 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 the Temporary Residence Transition stream, to work in the nominated position of Cook. 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 because the nomination lodged by the sponsor, Karishna Enterprises Pty Ltd was refused by the Department, as such, there was no approved nomination.

6. On 16 April 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

7. The particulars of the information were that the application for approval of the related nominated position, made by Karishna Enterprises Pty, was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but it was recently affirmed by the AAT. Meaning that the nominator’s application for the nominated position has not been approved.

8. It was explained in the letter to the applicants that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

9. On 14 May 2018, the applicant responded to the s.359A letter. The applicant in his response acknowledged that the related nomination by Karishna Enterprises Pty Ltd had been affirmed. He outlined that the business had now closed, and he had become a scapegoat and asked for consideration of his application on the basis of procedural fairness. The applicant’s letter described how he had worked for the company for considerable time, and met all the requirements of his visa. He outlined that the business closing was beyond his control and how he was owed wages and superannuation.

10. The applicants appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal received oral evidence from Amandeep Jhanji. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

11. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

14. 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.

15. 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.

16. Karishna Enterprises Pty Ltd nomination application was refused by the Department and that decision was affirmed by the Tribunal. At hearing the applicants conceded that the related nomination had been affirmed but requested the Tribunal take into consideration their circumstances and make a favourable decision.

17. The Tribunal outlined to the applicants that it had no discretion to waive the nomination approval requirement. The Tribunal empathised with the applicants situation and acknowledged that they were a victim of circumstances, yet it had no power to make a favourable decision as the nomination had not been approved.

18. At hearing the applicants representative asked for the Tribunal to refer the matter for Ministerial Intervention. The Tribunal outlined to the representative that there were guidelines on the types of matters that would be considered for Ministerial Intervention, and invited the representative to provide submissions for the Tribunal’s consideration to this regard. The Tribunal gave the representative 10-days to provide submissions on why the Tribunal should refer the application for Ministerial Intervention.

19. On 4 June 2018, the applicants’ representative wrote to the Tribunal withdrawing their request for the Tribunal to consider referring the matter for Ministerial Intervention, as they wished to instead pursue the matter through Federal Circuit Court. Although the applicants no longer wish the Tribunal to consider their matter for Ministerial Intervention, the information currently before the Tribunal would not likely warrant a referral.

20. As the nomination application for the position to which the applicants Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations.

21. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

22. The applicants have 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 Direct Entry stream have not been met, the decision under review must be affirmed.

23. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    Member