KAUR (Migration)

[2020] AATA 3252

KAUR (Migration) [2020] AATA 3252 (14 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SANDEEP KAUR
Mr RAHUL DUGGAL
Miss RANON DUGGAL
Miss RAIVYA DUGGAL

CASE NUMBER:  1824797

HOME AFFAIRS REFERENCE(S):          BCC2017/2331600

MEMBER:Stavros Georgiadis

DATE:14 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 June 2020 at 2:52pm

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

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, 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 9 August 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 30 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 Temporary Residence Transition stream, to work in the nominated position of Web Developer (ANZSCO 261212).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations as at the time of the decision, the appointment to which the visa application relates had not been approved (cl.186.223(2)).

6. The first and second named applicants appeared before the Tribunal on 12 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating employer’s current sole Director, Ms Jasdeep Kaur who appeared regarding the related AAT casefile 1730997, refusing the nomination of the position. The related matters were heard together by teleconference in a combined hearing.

7. 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 the combined hearing by telephone, having regard to the nature of the matters and the individual circumstances of the applicants. 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. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.    

8. The applicants were represented in relation to the review by their registered migration agent, but the agent was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The primary issue in the present case is whether the first named (primary) visa applicant meets the criteria for grant of the Employer Nomination (Permanent) (Class EN) Subclass 186 visas.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal notes that the required declaration in paragraph 1114B(3)(d) of Schedule 1 has been made in relation to the position nominated by the nominator employer. The Tribunal is satisfied on the documentary and oral evidence before it that the position to which the application relates is that of Web Developer (ANZSCO 261212) and that the position was nominated by Sargun Group Pty Ltd Pty Ltd who is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations.

14. The Tribunal is also satisfied from the available evidence before it that the applicant is identified in the nomination as a Subclass 457 visa holder for the purposes of cl.186.223(1).  

15. The oral evidence before the Tribunal from the nominator is that the position has not subsequently been withdrawn and is still available to the applicant for the purposes of cl.186.223(3) and cl.186.223(4).

16. On 14 June 2020 the Tribunal decided to affirm the decision to refuse the nomination in the related AAT casefile 1730997 for the reasons set out in the Statement of Decision and Reasons of that date. At the hearing the Tribunal put to the applicant, in accordance with the procedure under s.359AA of the Act, that in the case where there is no approved nomination the (primary) applicant would not meet necessary criteria to satisfy cl.186.223 (specifically cl.187.223(2)) for the grant of the visas and that the application would, on that basis, be unsuccessful.

17. The Tribunal invited the applicants to comment on, or respond to, the information that in circumstances where the Tribunal refuses the nomination, this would be the reason or part of the reason, for affirming the decision under review.  The Tribunal also advised the applicants that they could seek additional time to comment on, or respond to, the information and that the Tribunal would consider if it considered the applicants reasonably needed additional time to comment or respond. 

18. The applicants responded straight away and did not require additional time to comment or respond. The first and second named applicants conveyed to the Tribunal that they understand and accept that in circumstances where there is no nomination approved, the visa applications could not be successful as approval of the nomination by the employer is one of the essential requirements for the grant of the Subclass 186 visas.

19. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Web Developer (ANZSCO 261212) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved to satisfy the requirement of cl.186.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved. 

20. As cl.186.223(2) is not satisfied, cl.186.223 is therefore, not met.

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 in respect of all applicants as claimed members of the same family unit as the primary applicant.

    DECISION

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

    Stavros Georgiadis
    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.