Kamaldeep Kaur (Migration)

[2020] AATA 3485

Kamaldeep Kaur (Migration) [2020] AATA 3485 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kamaldeep Kaur
Mr Jagroop Singh

CASE NUMBER:  1802677

HOME AFFAIRS REFERENCE(S):          BCC2017/129344

MEMBER:Susan Trotter

DATE:9 July 2020

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 July 2020 at 3:13pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – sponsor deregistered – nomination still available – nomination from a previous 457 application – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.231; r 1.13

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18           

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 16 January 2018 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 11 January 2017. The first-named applicant (the applicant) is a 34-year-old citizen of India. The second-named applicant is a 32-year-old citizen of India and is identified in the visa application as being the husband of the applicant.

3. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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 Labour Agreement stream.

4. In the present case, the applicant, as primary visa applicant, applied for the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook for Sehaj Jandali Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The second-named applicant applied on the basis of being a member of the family unit of the applicant.

6. 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 associated nomination had not been approved as required. The delegate also found that the second-named applicant could not be granted a Subclass 186 visa, as he did not meet the secondary visa criterion (cl.186.311) requiring him to be a member of the family unit of a person who met the primary visa criteria.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 2 February 2018 and provided the Tribunal with a copy of the delegate’s decision.

8. The applicants appeared before the Tribunal by telephone on 9 June 2020 to give evidence and present arguments.

9. The Tribunal has had regard to the applicant’s oral evidence and the second-named applicant’s oral evidence, the Departmental file, the Tribunal file and the documentation provided by the applicants to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

12. Clause 186.223(2) is set out 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 primary 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:

    (a)  the nomination has been approved and has not been subsequently withdrawn;

    (b)  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;

    (c)   the position is still available to the applicant; and

    (d)  the visa application was made no more than six months after the nomination of the position was approved.

14. As noted in the delegate’s decision, and as discussed with the applicant at hearing, the nomination application lodged by the nominator nominating the applicant for the position of Cook was refused by the Department on 28 November 2017.

15. The applicant told the Tribunal that the company tax returns (the nominator’s) were draft only and were not acceptable to the Department because they were only draft.

16. As discussed with the applicant at hearing, the Tribunal noted that the reasons as to why the nominator’s application was refused, and the related process, was not relevant to the issue before the Tribunal, which was whether there was an approved nomination, as opposed to why there might not be an approved nomination. The applicant told the Tribunal that at the moment she does not have an approved nomination.

17. The Tribunal put to the applicants[1] that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision and on 18 May 2020, this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominator was deregistered (on 11 August 2019) such that there was no longer a valid application for review. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, meaning that there was no prospect that the nomination refusal decision could be changed, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant as primary applicant, and consequently to also refuse to grant the visa to the secondary applicant.

    [1] Pursuant to procedure set out in s.359AA of the Act.

18. The Tribunal explained to the applicant that this information is also relevant to the review because if the Tribunal relied upon this information it would also not be able to be satisfied that another requirement for the visa to be granted is met, that is the criterion in cl.186.223(4), requiring that the position is still available. The Tribunal noted that this criterion had not been canvassed by the delegate but was another criterion that needed to be met for the visa to be granted and that if the Tribunal found that there was no approved nomination and/or that the position was no longer available would mean that the Tribunal would have to affirm the decision under review to refuse to grant the visas.

19. The Tribunal asked the applicant if she wished to comment on or respond to the information. She indicated that she did not wish to do so. The second-named applicant sought to respond to the information and stated that all of the things the Tribunal had said were correct but that when the visa application was originally refused, they had a nomination at that time, a nomination in relation to their previous Subclass 457 visas. As discussed at hearing, an approved nomination in relation to the previous Subclass 457 visas cannot satisfy the separate criterion for there to be an approved nomination in relation to the Subclass 186 visa. The second-named applicant said they were not aware of that; that there was another approved nomination application required. Further, the Tribunal discussed that given that the nominator is now deregistered, the Tribunal would not be able to be satisfied that the nominated position of Cook is still available to the applicant as is also required. The applicant responded that it is correct that she does not have the current position available to her as a Cook.

20. The Tribunal also took into account the detailed written submissions provided by the applicants. Those submissions addressed a number of matters, including matters addressing the reasons why the nominator’s nomination application had been refused by the Department. The Tribunal notes that those submissions also refer to the applicant having worked hard for four years and then the restaurant having to close, with the resulting visa refusal breaking ‘our hearts and dreams’ and that while she has another bridging visa in place, her husband, the second-named applicant, only has a bridging visa in place in relation to the application to the Tribunal. The applicant requested more time because she is awaiting a decision on a Subclass 489 application that she lodged 18 months ago. The Tribunal acknowledged these circumstances but discussed with the applicants that given there is no evidence before it that the applicants can meet the requirements for the visa, the Tribunal has a statutory duty to finalise the application as quickly as possible.

21. In considering whether to delay finalisation of the matter, the Tribunal has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment. As already noted, given the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that includes being quick, in circumstances where on the evidence before it necessary requirements for the visa are not met, nor can be met, the Tribunal concluded that it is not appropriate or reasonable to adjourn for any further time. In reaching this conclusion, the Tribunal does not in any way diminish the impact of the applicants’ circumstances as discussed.

22. The Tribunal acknowledges the applicants’ circumstances as advised by them. However, as discussed with the applicant at the hearing, the issue before the Tribunal relates to whether the associated nomination has been approved and the circumstances as to why the nomination was originally refused is not relevant to the issue before the Tribunal on this review application. Further, it is not in dispute that there is no longer a position available. The Tribunal notes, as also discussed with the applicants at the hearing, that there is no provision in the legislation to take into account discretionary matters such as the applicants’ circumstances and the Tribunal must make its decision in accordance with the applicable legislative provisions.

23. The primary issue before the Tribunal is whether the nomination associated with the applicant’s visa application has been approved. The evidence before the Tribunal indicates that the associated nomination has been refused and that there is no pending review of that nomination refusal. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 is not met as a whole. Further, as discussed, cl.186.223(4) is also not met.

24. 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.

25. The Tribunal must also affirm the decision not to grant the second-named applicant a Subclass 186 visa as he does not meet the secondary visa criterion requiring him to be a member of the family unit of a person who holds a Subclass 186 visa, and there is no evidence that he meets the primary visa criteria for this subclass in his own right.

    DECISION

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

    Susan Trotter
    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.