KAUR (Migration)

[2019] AATA 2147

KAUR (Migration) [2019] AATA 2147 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ratanjit KAUR
Ms Japanjog KAUR
Ms Gurnoor KAUR

CASE NUMBER:  1723271

HOME AFFAIRS REFERENCE(S):           BCC2015/2063246

MEMBER:Jennifer Cripps Watts

DATE:10 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2019 at 2:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nomination – postponed and rescheduled hearing – ASIC search – nominator deregistered –  not subject of nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, r 1.13, cls 186.223, 186.3

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 Immigration and Border Protection on 11 September 2017 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 18 July 2015. 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 ICT Customer Support Officer for Vensys Australia Pty Ltd (Vensys).

5. The delegate refused to grant the visas and the applicant was notified of the refusal on 11 September 2017.  She applied for review on 27 September 2017, within time.

6. A hearing was scheduled in February 2019, but at the request of the applicant, for medical reasons, a six week postponement was sought.  The Tribunal granted the postponement and rescheduled the hearing on 10 April 2019.  The applicant attended on that date to give evidence and present arguments.  The second and third named applicants are children who are members of the applicant’s family unit.  They did not appear at the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the position identified in the applicant’s Subclass 186 visa application is the subject of an approved nomination or a pending review of the nomination.

9. A large amount of evidence was provided.  The Tribunal has considered and had regard to relevant documents and information in reaching a decision.  The question for the Tribunal is whether the applicant is the subject of an approved nomination or nomination application, or one that has not ceased, or a nomination refusal that is under review.

10. A letter was sent to the applicant prior to the hearing, on 1 March 2019, under the requirements of s.359A of the Act, referring to an earlier request (on 4 December 2018) that she provide evidence of the position identified in her visa application being the subject of an approved nomination or evidence of a pending application for review of a decision to refuse the nomination.  The applicant had informed the Tribunal, in writing on 5 December 2019, that the position identified in the applicant’s visa application (that is the subject of this review) is the subject of an approved nomination and provided, in support, a copy of the approval of the nomination dated 19 January 2015.

11. The applicant was informed that an ASIC search undertaken by the Tribunal on 6 December 2018 indicated that Vensys Australia Pty Ltd (ACN 135 284 481), the nominator, was deregistered on 19 August 2018.  In line with statutory obligations, the applicant was informed that the information relating to the deregistration of Vensys indicated she was not the subject of a nomination.  Effectively, that as Vensys (ACN 135 284 481) had ceased to be, so had the nomination.  She was invited to comment or respond. 

12. A response was received from the applicant, in writing on 14 March 2019.  In the response she says that Mr Ghojinder Singh bought Vensys in May 2018 and she claims, essentially, that because she has remained with the same employer from 2011 to date, although with two different owners (and two different ACNs) that where a Standard Business Sponsor has had a change of ownership the sponsor remains essentially the same employer.  Evidence was provided from Mr Singh indicating that the applicant still works there and this is not in dispute.  The Tribunal accepts that the applicant continues to work for Mr Singh’s Vensys, which has been owned by Mr Ghojinder Singh since May 2018 and that her employment continued after Mr Singh bought the company.  The ACN for Mr Singh’s Vensys, under the new owner Mr Ghojinder Singh, is 135 284 481.  There is evidence on the file about these matters that was provided by the applicant. 

13. The applicant was asked at the hearing whether she was aware that Vensys (ACN 29 135 284 481) had been deregistered in August 2018 and said she wasn’t.  The information was put to the applicant again, under s.359AA, because she said she didn’t know about it, even though she had had it put to her in writing in December 2018.

14. At the hearing, the applicant said that Mr Singh’s Vensys, since he bought it in May 2018, is a Standard Business Sponsor.  No verifiable evidence was provided.  However, the Tribunal is prepared to accept on the face of it, but without making findings, that they are a Standard Business Sponsor.  The applicant was asked at the hearing if she is the subject of a current nomination and said she is not.  She mentioned that she has spoken to Mr Gojinder Pal Singh about the possibility of making an application for a Subclass 482 visa and said also that Mr Singh is considering nominating two or three other people as well.

    Background

15. The following information, in this paragraph, was provided by the applicant, some of it in writing and some at the hearing, and is background to her situation.  She first came to Australia holding a student visa from 2008 to 2011.  In late 2008, the applicant returned to India as her father was gravely ill and, while there, she said she married Arvinder Singh.  The applicant returned to Australia in December 2008 and says that Mr Singh came to Australia in 2010 to join her.  The applicant commenced working at Vensys and was granted a Subclass 457 visa in 2011 identified in a nomination by Vensys.  In February 2015 the applicant applied for a Subclass 186 visa identified in the nomination by Vensys, including her husband as a secondary applicant.  She said that adverse information about her husband, Arvinder Singh, relating to his identity, was put to her when her application was being assessed.  The applicant said that she and Arvinder Singh, who share two children born in Australia in April 2011 and September 2014, had separated in 2014, and she did not know about his identity issues.  The applicant said that Arvinder Singh is recorded as the father on both the children’s birth certificates.  The Tribunal notes that the name on the children’s birth certificates provided by the applicant with her visa application is Arvinder Singh Khural and accepts that this is who the applicant was referring to.  She elected to withdraw the Subclass 186 application made in February 2015 and submitted another application a few months later.  The applicant submitted a new Subclass 186 visa application on 18 July 2015, identified in a related nomination by Vensys (an approved Standard Business Sponsor at the time), including only the two children as secondary applicants, but not her husband, Arvinder Singh.  Ms Kaur said they had separated in 2014 and that she has commenced divorce proceedings in Australia and that she has a hearing coming up in the next month or so.  She said that Mr Singh has some contact with the children, but it is limited because he has returned to India.

16. The reason the visa was refused was because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations. That requires, among other things, that the position to which the application relates is the position as it appears in a related nomination that has been approved, not withdrawn, or is the subject of a nomination refusal that is under review.

17. The applicant gave evidence at the hearing that she does not have a current nomination relating to the Subclass 186 visa that is the subject of this review. 

    Nomination of a position

18. 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.

19. 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.

20. Clause 186.223 also requires that the position to which the application relates must, among other things, be the position 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.  

21. On the evidence, having carefully considered all relevant facts and matters, the Tribunal is not satisfied that the applicant is the subject of an approved nomination that has not been withdrawn or a related nomination refusal that is on review.

22. Therefore, cl.186.223 is not met.

23. 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.

    Secondary applicants

24. The dependant applicants, two children born in 2011 and 2014, made valid combined applications with the applicant.  The Tribunal is satisfied, on the evidence given by the applicant, that at the time of this decision they remain members of her family unit.

25. Secondary applicants must meet the secondary criteria in cl.186.3 of Schedule 2 to the Regulations. To satisfy the criteria for the grant of the visa, they must have made a combined application and be members of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the visas for the secondary applicants must also be affirmed because they do not meet the secondary criteria.

    DECISION

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

    Jennifer Cripps Watts
    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.