KAUR (Migration)

[2019] AATA 2938

KAUR (Migration) [2019] AATA 2938 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs RUPINDERJOT KAUR
Mr MANPREET SINGH
Master FAETH ARMAAN SINGH

CASE NUMBER:  1613541

HOME AFFAIRS REFERENCE(S):           BCC2015/2442277

MEMBER:Warren Stooke AM

DATE:25 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 March 2019 at 12:00pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 186.242, 186.311

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 24 August 2016 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 24 August 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 the Temporary Residence Transition stream, to work in the nominated position of Hairdresser ANZSCO 391111.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.242 and 186.223 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor.

6. The applicants appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Singh, a Director of REET MANN PTY LTD [Tribunal Case 1610471].

7. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Hairdresser ANZSCO 391111.

    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. On 8 March 2019, the Tribunal corresponded with the applicant, as follows:

    “Case number: 1613541
    
    
    8 March 2019

    Dear Mrs KAUR, Mr SINGH and Master SINGH

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION — MRS RUPINDERJOT KAUR, MR MANPREET SINGH AND MASTER FAETH ARMAAN SINGH

    I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Employer Nomination (Permanent) visas.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information. The particulars of the information are:

    ·     The applications for approval of the nominated position made by Reet Mann Pty Ltd (the nominator) were refused by a delegate of the Minister for Immigration. The nominator sought review of those decisions but they were recently affirmed by the AAT. This means that the nominator's applications for the nominated position have not been approved.

    This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

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

    Your comments or response should be received by 22 March 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 22 March 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 22 March 2019 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.

    If you have any questions, please email [email protected] or contact us on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

14. As at the date of decision, the applicant has not provided any response to the Tribunal’s invitation to comment or respond to information concerning the decision relating the application of the employer to be approved as a standard business sponsor. [Tribunal Case 1610471].

15. On the basis that the applicant has not been able to satisfy the Tribunal that she is employed by an approved standard business sponsor, the Tribunal is not satisfied that the applicant meets cl.186.223

16. Therefore, cl.186.223 is not met.

17. 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.

18. As the primary applicant does not meet the criteria provided in cl.186.223, the Tribunal therefore finds that the secondary applicants do not satisfy cl.186.311 of Schedule 2 of the Regulations.

    DECISION

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

    Warren Stooke AM
    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.