Kaur (Migration)

[2020] AATA 3254

Kaur (Migration) [2020] AATA 3254 (16 June 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaspreet Kaur
Mr Surjit Singh
Miss Gurleen Kaur

CASE NUMBER:  1829561

HOME AFFAIRS REFERENCE(S):          BCC2017/2324582

MEMBER:Cathrine Burnett-Wake

DATE:16 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2020 at 9:12am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Hairdresser – nomination refused–not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13 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 27 September 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 29 June 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 Hairdresser with Vihaan Enterprises Pty Ltd.

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 nomination by Vihaan Enterprise Pty Ltd was refused.

6. The applicants appeared before the Tribunal via telephone on 15 June 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent. The representative did not participate in the hearing.

8. For the following reasons, the Tribunal has concluded that the 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. On 3 April 2020, the Tribunal, wrote to the applicants pursuant to s.359A, of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information.

13. The particulars of the information were that the application for approval of the nominated position made by Vihaan Enterprises Pty Ltd, (the nominator) was refused by a delegate of the Minister for Immigration. Meaning that the nominator’s application for the nominated position has not been approved.

14. The letter explained to the applicants that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

15. On 17 April 2020, the applicant’s representative responded to the Tribunal’s letter. The representative’s letter outlined that the applicant’s nominating employer is not contactable and consequently she is not sure whether she is subject to an approved nomination.

16. At hearing the applicant said that she has not been able to contact the nominating employer and it was only when she received the Tribunal’s letter that she realised that there was an issue with the nomination.

17. The facts are not under dispute, and both parties agree that there is no approved nomination.

18. Therefore, cl.186.223 is not met.

19. 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.

20. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visas to the second and third named applicants as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.