KALAKUNTLA (Migration)

[2019] AATA 909

KALAKUNTLA (Migration) [2019] AATA 909 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Srinivas Kalakuntla
Rohini Tumma

CASE NUMBER:  1620737

HOME AFFAIRS REFERENCE:                BCC2016/1188924

MEMBER:Lilly Mojsin

DATE:22 March 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 22 March 2019 at 7:23am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 and Border Protection on 1 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. 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 review, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Cook’ (ANZSCO 351411)’.  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(2) of Schedule 2 to the Regulations because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination, that had been made by All Seasons Aust Gourmet Produce NSW Pty Ltd, [1616001].

6. The applicants appeared before the Tribunal, at a joint hearing held with All Seasons Aust Gourmet Produce NSW Pty Ltd, [1616001] held on 3 May 2018, 12 December 2018, 10 January 2019 and 24 January 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for the visa on the basis of his nomination by All Seasons Aust Gourmet Produce NSW Pty Ltd for the position of ‘Cook’ (ANZSCO 351411)’. The second named applicant is the applicant's wife. She applied for her visa on the basis of being a member of the family unit of a person who meets the primary criteria.

9. Clause 186.223 as applicable in this review 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.

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. The Tribunal [1616001] refused to approve the nomination, of the applicant, by All Seasons Aust Gourmet Produce NSW Pty Ltd for the occupation of Cook on 6 March 2019.

12. On 4 March 2019 the Tribunal sent to the applicant a letter pursuant to s.359A of the Act stating as follows:

    You were nominated for the purposes of your Subclass 186 visa application, by an employer, All Seasons Aust Gourmet Produce NSW Pty Ltd in accordance with r.5.19(3) of the Migration Regulations 1994 (the Regulations).

    However, on 1 March 2019 , the Tribunal refused the application for approval of the nominated position lodged by All Seasons Aust Gourmet Produce NSW Pty Ltd

    This information is relevant to the review because it could lead the Tribunal to find that you do not satisfy the criteria for the visa because the relevant nomination to which your application relates has not been approved as required by cl. 186.223(2) of the Schedule 2 to the Regulations.

    If we rely on this information in making our decision, we may affirm the decision of the delegate to refuse to grant the visa.

13. The Tribunal requested that the applicant give comments on or respond to the above information in writing by 18 March 2019.

14. On 11 March 2019 the applicant sent a request to the Tribunal.  The applicant  stated:

    I was informed by my boss that he completed their hearing and member has refused the application on 6th of March 2019.

    We are not sure about our visa refusal status at present, if it is refused we are unable to leave the Country within 28 days. At present my wife is 36+ weeks pregnant and our doctor told us that she can’t travel at this stage as she due in 2,3 weeks. When we tried to call Airlines they said they won’t allow after 36 weeks pregnancy.
    
    After delivery we need some time to apply passport and visa for our newborn baby to leave the country. I am attaching my wife’s yellow form and scan report. If you need any doctor certificate as a proof we are ready to submit. Can you please consider our situation and advise for proceeding.

15. The Tribunal has considered whether the email received from the applicant is a response to the s.359A invitation. The applicant did not refer to the s.359A invitation. The applicant did not address the adverse information provided by the Tribunal, the applicant did not suggest that the applicant still wanted an oral hearing. The merely sought information regarding his migration status. The Tribunal is not satisfied that the email of 11 March 2019 was a response to the s.359A invitation.  On that basis the Tribunal finds that the applicant did not respond to the s.359A invitation.  As the applicants failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant's comments/response or to obtain the information invited to be provided.

16. As the nomination application of All Seasons Aust Gourmet Produce NSW Pty Ltd upon which the application was dependent was refused by the Department on review by the Tribunal,  the applicant is not subject of an approved nomination.

17. Therefore, cl.186.223 (2) is not met.

18. As the primary applicant does not meet the criteria for the grant of a Subclass 186 visa, the second named applicants is not a member of the family unit of a person who meets the primary criteria and her application must also be refused.

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.

    DECISION

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

    Lilly Mojsin
    Member

    
    

    ATTACHMENT A

    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.