Jyotika (Migration)

[2021] AATA 4530

Jyotika (Migration) [2021] AATA 4530 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jyotika
Mr Vipan Kumar
Master Aarav Vashishat
Ms Angel Vashishat

CASE NUMBER:  1925378

HOME AFFAIRS REFERENCE(S):          BCC2018/6225714

MEMBER:Nicola Findson

DATE:8 November 2021

PLACE OF DECISION:  Perth

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

Statement made on 08 November 2021 at 4:32pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

CASES

Hasran v MIAC [2010] FCAFC 40     

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 28 August 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 17 January 2019. 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 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 of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination approved by the Minister.

6. The applicants applied to the Tribunal for review of the Department’s decision on 10 September 2019, and with the application provided a copy of the delegate’s decision record.

7. On 22 October 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act. This letter followed a decision in a matter (1919423) which related to the nomination of the relevant position by the applicant’s employer, Radhamadhav Pty Ltd. The letter invited the applicants to comment or respond to information that on 21 October 2021, the Tribunal made a decision to affirm a decision to refuse a nomination in respect of Radhamadhav Pty Ltd. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa to the applicant, because cl.186.223(2) of Schedule 2 of the Regulations requires that the Minister has approved the nomination. It also indicated the information was relevant because cl.186.311 requires the secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa.

8. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 5 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation to comment or respond to information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the comments have not been provided and the applicants have not made any contact with the Tribunal to indicate that the comments are forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicants comments.

11. 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

12. 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.

13. 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 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.

14. On the basis of the information before it, the Tribunal finds that on 21 October 2021, the Tribunal affirmed a decision of the Department to refuse a nomination in respect of Radhamadhav Pty Ltd, in which the applicant is the nominee.

15. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved.

16. Therefore, cl.186.223 is not met.

17. 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.

18. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second, third and fourth named applicants do not satisfy the secondary criteria for the visa.  Consequently, they do not satisfy cl.187.311 and the decision under review must be affirmed in respect of them.

    DECISION

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

    Nicola Findson
    Member

    
    

    ATTACHMENT A

    186.223(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 Temporary Residence Transition stream; 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.