Kaur (Migration)

[2021] AATA 2262

Kaur (Migration) [2021] AATA 2262 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Damanjit Kaur

CASE NUMBER:  1823855

HOME AFFAIRS REFERENCE(S):          BCC2017/1504995

MEMBER:Antonio Dronjic

DATE:15 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 15 June 2021 at 10:22am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 351, 359, 360
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

CASES

MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233    

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 10 August 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 April 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). 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 is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager. The delegate refused to grant the visas because the applicant did not meet cl.186.223 because the nomination application lodged by the applicant’s employer, La Mav Pty Ltd was refused by the Department on 11 July 2018.

5. The applicant applied to this Tribunal for review of the primary decision on 17 August 2018 and was represented in relation to the review by her registered migration agent. The applicant submitted a copy of the primary decision record with her review application.

6. On 28 May 2021, the Tribunal wrote to the applicant inviting comments on or response to the following information under section 359A:

   • Your visa application was refused by the Department on 10 August 2018, because

   the nomination mentioned in cl.186.223 has not been approved.

   • The decision not to approve the nomination by La Mav Pty Ltd was made by the

   Department on 11 July 2018.

   • La Mav Pty Ltd applied for review of this decision at this Tribunal on 23 July 2018.
   • On 26 May 2021, the Tribunal affirmed the Department’s decision not to approve

   the nomination made by La Mav Pty Ltd.

   This information, if accepted and relied upon by the Tribunal, would be the reason or
   part of the reason for the Tribunal to affirm the decision made by the Department to
   refuse you the grant of a subclass 186 visa. This is because one of the criteria
   contained within subclass 186, namely clause 186.223 requires that the nomination
   was approved by the Minister and that nomination has not subsequently been
   withdrawn.

   You are invited to give comments on or respond to the above information in writing.

   …

7. The applicant was invited to provide her comments on or response to the information by 11 June 2021.

8. On 11 June 2021, the applicant’s representative responded to the Tribunal letter, submitting that the applicant consented to the decision being made by the Tribunal on the evidence before it without the applicant attending the hearing. The representative submitted that the applicant is aware that the Tribunal will affirm the decision under the review. The representative requested that the Tribunal refers the matter to the Minister for consideration of his or her discretion under s.351 of the Act.

9. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

10. As the applicant consented under s.360(2)(b) of the Act to the Tribunal deciding the review without the applicant appearing before it, the Tribunal proceed to its decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. 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.

13. 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.

14. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by La Mav Pty Ltd on behalf of the applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the applicant does not meet the requirements of clause 186.223 at the time of its decision.

15. 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.

    Request for referral to the Minister for his intervention under s.351 of the Act.

16. The applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act which gives the Minister discretion to substitute a decision of the Tribunal for another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

17. The Tribunal has considered the applicant’s submissions and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s.351, s.417, and s.501J)’ and the Tribunal’s President’s direction.

18. Based on the evidence before it, the Tribunal is not satisfied that this matter exhibits unique or exceptional circumstances that warrants referral to the Minister. However, the Tribunal notes that following this decision the applicant can make a direct request to the Minister under s.351 of the Act should she wish to do so.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Antonio Dronjic
    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.