JYOTI (Migration)

[2019] AATA 4710

JYOTI (Migration) [2019] AATA 4710 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jyoti
Mr Deepak Kumar
Miss Yashika Arora
Master Ovin Arora

CASE NUMBER:  1622060

HOME AFFAIRS REFERENCE(S):           BCC2016/2695033

MEMBER:Katie Malyon

DATE:11 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2019 at 2:29 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – employer company deregistered – no appearance by applicant at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

Corporations Act 2001 (Cth), s 601AD(1)

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Singh v MIBP [2017] FCAFC 105

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 13 December 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 for the visas on 15 August 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for 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 3 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 - Indian national Mrs Jyoti - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.  The remaining applicants are members of Mrs Jyoti’s family unit. 

5. The delegate refused to grant the visas on the basis that Mrs Jyoti did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application made by her prospective employer was refused by the Department.

   Background

6. Mrs Jyoti was nominated to fill the position of Café or Restaurant Manager with Desi Hutt Restaurants & Caterers Pty Ltd (the Company).  However, the Company’s nomination was refused by the Department on 2 November 2016.  As a result, the Department refused the applicants’ Subclass 186 visa application. 

7. The Company sought review of the delegate’s refusal of its nomination application (Matter No. 1619181). On 26 April 2019, the Tribunal made a decision that it did not have jurisdiction to review the delegate’s decision refusing the Company’s nomination: based on publicly available information on the register of the Australian Securities & Investments Commission, the Company was deregistered on 24 June 2018 and, accordingly, no longer had standing pursuant to s.601AD(1) of the Corporations Act 2001 to continue with the application for review.

8. The Tribunal wrote to the applicants on 1 May 2019.  In its letter, the Tribunal stated that it is a requirement for grant of a Subclass 186 visa that the nomination for the position identified by Mrs Jyoti in her visa application has been approved.  The Tribunal noted that information before it suggests that the nomination for the position identified in Mrs Jyoti’s visa application was not approved, there is no pending review of the decision to refuse the nomination and lodgement of a new nomination application will not enable her to meet the criteria for the visa.  

9. In its letter the Tribunal requested the applicants provide, on or before 15 May 2019, evidence that the position identified in the visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination.  The Tribunal’s letter was sent to Mrs Jyoti’s amended email address as advised by her in a telephone call to the Tribunal on 23 December 2016.  On 21 May 2019, Mrs Jyoti acknowledged receipt of the Tribunal’s email.  Later that day, the Tribunal informed her in another email that to the applicants’ case was ready to be allocated to a Member and, once, constituted to a member, she will hear from the Tribunal further.  Mrs Joyti acknowledged receipt of the email and thanked the case officer for her reply.

   Hearing

10. On 21 June 2019, The Tribunal invited the applicants to attend a hearing on 9 July 2019 at 10:30 am to give evidence and present arguments.  The invitation requested the applicants provide the Tribunal, prior to the hearing, with any documentation on which they intend to rely to establish that they meet criteria for grant of the visa.  No information was provided in response to the Tribunal’s letter.  

11. The applicants did not attend the scheduled hearing.  The Tribunal is satisfied that its hearing invitation letter was sent to the email address nominated by Mrs Jyoti for communications with the applicants and, further, that 2 SMS messages were sent to her nominated mobile number - on 2 July 2019 at 11:03 am and 8 July 2019 at 11:01 am respectively - to remind her of the hearing on 9 July 2019.

12. The Tribunal did not receive any request for an adjournment of the hearing, or any reasons from the applicants for their non-attendance.  To date, no further communication from the applicants has been received.

13. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support their review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

14. In the circumstances of this case, the Tribunal has considered that: the applicants have been notified of the hearing date via email to Mrs Jyoti’s nominated address as well as in 2 SMS messages to her mobile number; they did not attend the hearing; and, they did not seek to have the hearing date rescheduled. Further, the Tribunal has considered whether evidence that Mrs Jyoti meets the requirements of cl.186.223 of Schedule 2 to the Regulations is likely to be forthcoming. The Tribunal acknowledges that the Company sought review of the delegate’s refusal of its nomination: however, on 26 April 2019, the Tribunal decided it did not have jurisdiction to review the decision to refuse the Company’s nomination for the reasons set out above.

15. In these circumstances, and for the reasons set out in this decision, the Tribunal considers that the applicants have had a fair opportunity to provide relevant information to the Tribunal. 

16. 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

17. The issue in the present case is whether the first named applicant, Mrs Jyoti, is the subject of an approved nomination as required by cl.186.223 of Schedule 2 to the Regulations.

18. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the Declaration made by the primary visa applicant that is required to be made as part of a valid Subclass 186 visa application: paragraph 1114B(3)(d) of Schedule 1 to the Regulations .

19. 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 6 months after the nomination of the position was approved.

20. The Company’s nomination application was refused by the Department and, subsequently, the Tribunal made a decision that it did not have jurisdiction to review the Department’s decision. As a result, the position to which Mrs Jyoti’s Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.[1] 

    [1] Singh v MIBP [2017] FCAFC 105, Mortimer J at [90]

21. As the nomination application made by the Company for the position of Café or Restaurant Manager to which Mrs Jyoti’s Subclass 186 visa application relates has not been approved, it follows that she does not meet the criteria in cl.186.233(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

22. Mrs Jyoti 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.

23. The applications of the second, third and fourth named applicants are based on their being members of the family unit of a person who meets the primary criteria.  As Mrs Jyoti does not meet the primary criteria, the other applicants do not meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse the applications of the second named applicant, the third named applicant and the fourth named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    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.

    oOOo