Karki (Migration)

[2019] AATA 5693

Karki (Migration) [2019] AATA 5693 (12 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sarita Karki
Mr Mukunda Neupane

CASE NUMBER:  1722654

HOME AFFAIRS REFERENCE(S):          BCC2015/1944827

MEMBER:Mary Sheargold

DATE:12 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2019 at 9:42am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; rr 1.13, 5.19

CASES

Singh v MIBP [2017] FCAFC 105     

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 11 September 2017 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 7 July 2015. 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 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 there was no approved nomination.

6. The applicant appeared before the Tribunal on 18 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dilpreet Singh, the former director of the nominating employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

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

   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); 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. The applicant’s nominating employer, Preet Bros Pty Ltd, applied for approval on 3 July 2015 but the application was refused by a delegate of the Minister for Home Affairs.  The nominating employer applied to the Tribunal for a review of that decision.

13. On 18 July 2019, the applicant appeared before the Tribunal, and did so in a combined hearing with the nominating employer who appeared in respect of the nomination application.  At the hearing, the Tribunal considered the issues relating to the refusal of the nomination by the delegate of the Minister for Home Affair and the requirements of the nominating employer to satisfy the criteria for approval to nominate the applicant for her Subclass 186 visa, as well as the requirements for the applicant to be granted the visa.  Specifically, the Tribunal explained that the nomination application would need to be approved in order for the applicant’s application to be remitted to the Department for reconsideration.  The Tribunal notes that the applicant indicated that she understood this.

14. On 19 August 2019, the Tribunal made a decision in relation to the nomination application by Preet Bros Pty Ltd affirming the decision of the delegate of the Minister for Home Affairs to refuse that application. Therefore, the Tribunal finds that the applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

15. In reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

16. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.186.223 in relation to her application.  The nomination by Preet Bros Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

17. Therefore, cl.186.223 is not met.

18. On 23 August 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited her to comment on or respond to information that the nomination application in respect of her Subclass 186 visa application had been refused, and to do so by 6 September 2019.  On 5 September 2019, the applicant’s new representative contacted the Tribunal and advised the Tribunal that Preet Bros Pty Ltd intended to appeal the refusal of its nomination application to the Federal Circuit Court of Australia, and as such, expected that the Tribunal would hold its decision in this application until the outcome of the Federal Circuit Court appeal had been determined.

19. On 9 September 2019, the Tribunal responded to the applicant’s request to delay making a decision and stated that the Tribunal does not speculate in relation to matters of appeal, and considers that it is bound to deal with cases expeditiously and efficiently based on the information before it, as required by the guidelines of good practice.  As at the date of this decision, no further response has been received.

20. Ultimately, the applicant has not been able to provide any evidence that she does have an approved nomination in order to satisfy cl.186.223 of Schedule 2 to the Regulations. Therefore, the Tribunal emphasises its reasoning and findings above and notes that the applicant cannot meet cl.186.223.

21. 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

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

    Mary Sheargold
    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.