Kalsi (Migration)

[2021] AATA 2413

Kalsi (Migration) [2021] AATA 2413 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuljeet Kalsi
Ms Avneet Kalsi
Miss Sukhdeep Kaur

CASE NUMBER:  1829887

HOME AFFAIRS REFERENCE(S):          BCC2017/2328108

MEMBER:Glenn O’Brien

DATE:9 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 June 2021 at 6:06pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 424, 359
Migration Regulations 1994, r 1.13; 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 Home Affairs on 25 September 2018 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 30 June 2017. 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.

5. The applicant provided the Tribunal with a copy of the delegate’s decision record. 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 nomination application filed by Central Qld Curry Club and Restaurant Pty Ltd was refused on 7 August 2017 and the applicant did not therefore have a nomination approved by the Minister.

6. The applicant appeared before the Tribunal on 7 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Prasad.

7. Following the review hearing, on 26 May 2021, the Tribunal wrote to the applicant pursuant

   to s 359A of the Act inviting him to provide comments on, or response to, the following
   information:

   The application for approval of the nominated position made by Central QLD Curry
   Club & Restaurant P/L (the nominator) was refused by a delegate of the Minister
   for Immigration. The nominator sought a review of that decision, but it was recently
   affirmed by the Tribunal. This means that the nominator’s application for the
   nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of
   the visa that the position specified in your visa application is the subject of an
   approved nomination.

   If we rely on this information in making our decision, we may find that the position
   specified in your visa application is not the subject of an approved nomination. This
   would mean that you do not satisfy a requirement for the grant of the visa and that we
   must affirm the decision that is under review.

   You are invited to give comments on or respond to the above information in writing.
   Your comments or response should be received by 9 June 2021.

8. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether or not the applicant satisfies cl 186.223(2) of the Regulations by having a nomination in the Temporary Residence Transition stream that identifies the applicant and has been approved by the Minister.

    Nomination of a position

11. 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 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.

12. 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.

13. The applicant’s then representative wrote to the Tribunal on 21 May 2021 and stated they “will, effect of immediately, no longer be representing Central Qld Curry Club & Restaurant P/L and Mr Kuljeet Kalsi.” (sic)  On 9 June 2021 the applicant’s newly appointed representative wrote to the Tribunal in the following terms:

    Dear Sir/Madam,

    I refer to the above matter and confirm that we have recently been appointed to act for the above named Review Applicant and his secondary dependents. In this regard, please find enclosed a duly signed MR5.

    To this end, we refer to the Tribunal’s letter in this matter dated 26 May 2021. In response, it would appear that the Tribunal’s letter is a request under Section 424A of the Migration Act 1958, and accordingly, we are instructed to reply to this notice on our client’s behalf. In doing so, we confirm that our client accepts that the relevant Nomination refusal has been upheld by a separate Tribunal however, he would like to put the basis of that decision, and the underlying background, to this Tribunal so that it can understand the relevant factual circumstances and the effect that such a decision is having on our client and his family. In this regard, and based on the foregoing, we foreshadow that our client wishes to bring this information to the Tribunal’s attention for the purpose of asking the Tribunal for a referral to Ministerial Intervention in the hearing.

    We are further instructed that our client does not wish to waive his right to a hearing and we would kindly ask that the matter be listed as soon as possible on that front so that our client’s circumstances can be presented.

14. The nomination of the applicant for the position of Cook (ANZSCO 351411) by Central QLD Curry Club & Restaurant Pty Ltd was refused and the Tribunal affirmed the decision of the delegate to refuse the nomination application on 24 May 2021.

15. The decision subject to the review of the Tribunal is not a Part 7 Reviewable Decision. The invitation issued by the Tribunal on 26 May 2021 was an invitation pursuant to s.359A of the Act, not s.424A. On 14 April 2021, the applicant was invited to a hearing. On 19 April 2021 the applicant filed a hearing response stating he would take part in the hearing. The applicant consented to, and participated in, the hearing conducted on 7 May 2021 which was a combined hearing of both the nomination and nominee application(s) for review. The applicant was represented at the hearing by a legal practitioner. During the course of the hearing both the applicant and his representative were invited to raise any matters he wished to do so in relation to his application for review. The applicant has therefore been invited to a hearing to give evidence and present arguments and provided a reasonable opportunity to be heard.

16. Despite being issued an invitation to comment on and respond to information after the hearing the applicant has not provided a substantive response to that invitation.  The applicant has provided no further information to establish a basis for a referral by the Tribunal to the Minister for consideration of Ministerial intervention at the hearing or in response to the Tribunal’s invitation pursuant to s.359A.  The applicant may initiate such a request directly. 

17. The Tribunal considers the applicant has been afforded a reasonable opportunity to be heard and appeared at a hearing of the application for review on 7 May 2021.  There is no right to a further hearing before the Tribunal. The determinative issue before the Tribunal is whether or not the position relating to the applicant has an approved nomination. The applicant confirmed on 9 June 2021 he accepts that the relevant nomination refusal has been affirmed by the Tribunal.  The Tribunal does not therefore grant the applicant a further hearing.

18. In carefully reviewing the evidence before the Tribunal, the Tribunal is not satisfied that it is appropriate in the circumstances of the case to refer the matter to the Minister for consideration of Ministerial intervention.

19. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant.

20. The applicant does not therefore satisfy cl 186.223(2).

21. Therefore cl 186.223 is not met.

22. 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.

    Secondary applicants

23. As the applicant does not meet the criteria for a Subclass 186 visa, the second and third-named applicants do not meet the criteria for the grant of a Subclass 186 visa as they are not members of a family unit of a person that holds a Subclass 186 visa on the basis of satisfying the primary criteria.

    DECISION

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

    Glenn O’Brien
    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.