Kanojiya (Migration)

[2020] AATA 1221

Kanojiya (Migration) [2020] AATA 1221 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Alpitaben Vipulkumar Kanojiya
Mr Vipulkumar Sureshbhai Kanojiya
Ms Honey Vipulkumar Kanojiya
Miss Bhargavi Vipulkumar Kanojiya

CASE NUMBER:  1803665

HOME AFFAIRS REFERENCE(S):          BCC2014/3410298

MEMBER:Phoebe Dunn

DATE:22 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223(2) of Schedule 2 to the Regulations.

Statement made on 22 April 2020 at 10:30am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hairdresser – subject of an approved nomination – anonymous allegations not independently substantiated – nomination approved by the Tribunal – decision under review remitted

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 Home Affairs on 8 February 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 12 December 2014. 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 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 Hairdresser (ANZSCO 391111).

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 related nomination application, being the nomination referenced in cl.186.223(1), was refused by a delegate of the Minister for Home Affairs on 8 January 2018 and as such there was no approved nomination.

6. The applicants appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Joe Kmaid representing the nominating business in relation to the review of the decision to refuse the related nomination application, which was heard at the same time.

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

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. 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.

11. 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 six months after the nomination of the position was approved.

12. At the hearing, the applicant gave extensive oral evidence about the history of her employment with the nominating business, her role and responsibilities.  This evidence supports the oral evidence given by the representative of the nominator at the hearing of the related nomination application. 

13. At the hearing, the Tribunal raised with the applicant a certificate issued by the Department on 7 September 2018 in accordance with s.376 of the Act.  The Tribunal provided a copy of the certificate to the nominee and noted that it believed the certificate was valid. The Tribunal invited the applicant to comment on the validity of the certificate and the exercise of its discretion to provide the applicant with the information covered by the certificate. 

14. The Tribunal then provided the gist of the information covered by the certificate to the nominee under s.359AA of the Act, noting that the Tribunal had not yet made up its mind about the information, explaining the relevance of the information and the consequences of the Tribunal relying on the information and invited the applicant to comment on or respond to the information, or to seek additional time to comment on or respond to the information. 

15. The Tribunal outlined the particulars of the information as follows:

    a.The Department received allegations in confidence from a source on 5 May 2018 that suggested that the position was not genuine.  The particulars of the information are that:

    i.the applicant is not working in the nominated position of hairdresser;

    ii.the applicant has never worked as a hairdresser;

    iii.the applicant is not qualified as a hairdresser; and

    iv.the applicant has another job managing apartments.

    b.The Department received allegations in confidence from a source on 5 May 2018 that suggested that the applicant had engaged in possible payment for visa arrangements with the nominator. 

16. The Tribunal explained the relevance of the information and the consequences of the Tribunal relying on the information being that, if true, the Tribunal may form the view that the applicant does not meet the requisite criteria under cl.186.212 and cl.186.223 and this would be the reason, or part of the reason, for affirming the decision that is under review.

17. The applicant and the nominator sought additional time to comment on or respond to the validity of the certificate and the information covered by the certificate and that was granted to the applicant and the nominator, to be provided by 28 August 2019.  By letter dated 26 August 2019, the applicant and the nominator sought a further period of time to respond, which was granted to 20 September 2019. 

18. By letter dated 2 October 2019 the Tribunal requested the applicant provide the following information in writing by 16 October 2019, in addition to the information requested at the hearing, as follows:

    a.Bank statements identifying the applicant as the bank account holder including all transactions for the period from January 2016 to September 2019.

19. The applicant and the nominator provided extensive written submissions and documents to the Tribunal by emails received on 26 August 2019, 18 September 2019, 20 September 2019, 23 September 2019, 24 September 2019, 2 October 2019 and 14 October 2019. The applicant and the nominator both strenuously denied the allegations. The Tribunal notes that the allegations were made anonymously.  The Tribunal notes no action was taken by the Department in response to the allegations and these allegations have not been independently substantiated.

20. The Tribunal carefully considered the documentary evidence and submissions received from the applicant and the nominator and oral submissions at the hearing and accepted this evidence as demonstrating that the nominator met the requirements of r.5.19(3), including rr.5.19(3)(c),(d) and (g).  Accordingly, on 17 April 2020, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

21. As the relevant nomination in respect of the visa applicant has been approved, the applicant meets the requirements of cl.186.223(2).

22. Therefore, cl.186.223 is met.

23. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

24. The delegate made a decision that the second, third and fourth named applicants did not satisfy cl.186.311, which requires that they are members of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and having made a combined application with the primary applicant.

25. The Tribunal is unable to make a direction that the secondary applicants meet this criterion, because at the time of the Tribunal’s decision, the first named applicant did not hold a Subclass 186 visa.  The Tribunal refers the case of the secondary applicants to the Department to consider the applications afresh.

    DECISION

26. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223(2) of Schedule 2 to the Regulations.

    Phoebe Dunn
    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.