Kaur (Migration)

[2020] AATA 4099

Kaur (Migration) [2020] AATA 4099 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pardeep Kaur
Mr Baljit Singh
Master Arnab Singh Mahal

CASE NUMBER:  1801999

HOME AFFAIRS REFERENCE(S):          BCC2017/1257338

MEMBER:Terrence Baxter

DATE:17 September 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 17 September 2020 at 9:57am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Facilities Manager –applicant failed to provide the requested information – nomination refused– tribunal affirmed nomination decision –not the subject of an approved nomination – members of the family unit of the first named applicant –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359,363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 10 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 3 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 (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 Facilities Manager for F Buchanan and P M Buchanan (the nominator).

5. The delegate refused to grant the visas on 10 January 2018 because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required her to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 21 November 2017 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The delegate also found that the second named and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decisions with the Tribunal on 25 January 2018.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

9. The applicant appeared before the Tribunal by telephone on 5 August 2020 to give evidence and present arguments.

10. The applicants were represented in relation to the review by their registered migration agent. The representative also attended the Tribunal hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. 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.

14. 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.

15. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Facilities Manager approved, with the applicant as nominee, on 3 April 2017. The nomination application was refused on 21 November 2017 and the nominator sought review of that decision with the Tribunal on 11 December 2017.

16. On 27 August 2020, the Tribunal affirmed the decision not to grant the nomination application.

17. On 1 September 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which the Tribunal considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 27 August 2020, the Tribunal affirmed the decision not to grant an Employer Nomination lodged by F Buchanan & P.M Buchanan.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that Mrs Pardeep Kaur does not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    We may subsequently find that Mr Baljit Singh and Master Arnab Singh Mahal do not meet the secondary visa criterion cl.186.311, which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of a visa and who holds a Subclass 186 visa, and affirm the decision under review in respect of their applications.

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

    Your comments or response should be received by 15 September 2020.

18. The Tribunal is satisfied that this invitation was properly dispatched to the applicants’ email address. The applicants failed to comment on or respond to the invitation within the prescribed time for commenting on or responding to the invitation. No comment on or response to that invitation has ever been received by the Tribunal.

19. Where a review applicant is invited to comment on or respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s.359C(2) of the Act.

20. The Tribunal has considered whether it should take further action to obtain the applicants’ views on the information referred to in paragraph 17 above. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicants have been aware since 10 January 2018 of the reasons for the visa application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 1 September 2020 were set out in that correspondence. The Tribunal has also taken into account that the applicant was advised at the hearing on 5 August 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

21. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to obtain the applicants’ views on the information referred to in the invitation from the Tribunal of 1 September 2020 or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl.186.223 and 186.311 of Schedule 2 to the Regulations.

22. The Tribunal notes that the application for nomination for the position of Facilities Manager has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

23. Therefore, cl.186.223 is 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. In relation to the second named and third named applicants, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member 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. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the second named and third named applicants do not satisfy the requirements of cl.186.311. The Tribunal finds accordingly.

    DECISION

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

    Terrence Baxter
    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.