KAUR (Migration)

[2020] AATA 223

KAUR (Migration) [2020] AATA 223 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs AMANDEEP KAUR
Mr PARWINDER SINGH
Miss GURNOOR KAUR SAHI

CASE NUMBER:  1834227

HOME AFFAIRS REFERENCE(S):           BCC2017/1699728

MEMBER:Andrew George

DATE:31 January 2020

PLACE OF DECISION:  Darwin

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

Statement made on 31 January 2020 at 5:20pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – nomination application refused – sponsor’s business deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 19 November 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 12 May 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. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because “The linked nomination has been refused”.

5. The applicants were represented in relation to the review by their registered migration agent, Ms Hislop (MARN: 1383279) of Hislop Migration Services.

6. On 16 January 2020, the Tribunal wrote to the applicants under s.359A of the Act. The Tribunal invited the applicants to comment on or respond to certain information that would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. This information was particularised as follows:

   The application for approval of the nominated position made by KMZK CORPORATION PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but the AAT found it had no jurisdiction in the matter as KMZK CORPORATION PTY LTD has been deregistered and has ceased to exist as a legal entity. This means that the nominator’s application for the nominated position has not been approved.

7. The applicants had until 30 January 2020 to reply to the Tribunal with their comments or response. No reply was received.

8. 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

9. 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.

10. 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.

11. There is no evidence before the Tribunal of a valid nomination, let alone that the position is still available to the applicant. From its files, and lack of reply from the applicant, the Tribunal is satisfied that the application for approval of the nominated position made by KMZK CORPORATION PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The Tribunal is also satisfied that the nominator sought a review of that decision but the Tribunal found it had no jurisdiction in the matter as KMZK CORPORATION PTY LTD has been deregistered and has ceased to exist as a legal entity. Consequently, the Tribunal is satisfied that the nominator’s application for the nominated position has not been approved. Therefore, cl.186.223 is not met.

12. The Tribunal notes that its findings with regard to the applicant mean that the secondary applicants fail to satisfy cl.186.311.

13. 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

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

    Andrew George
    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.