Kaur (Migration)

[2018] AATA 5596

Kaur (Migration) [2018] AATA 5596 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Harpreet Kaur
Mr Sukhman Singh Sangha
Mr Kuljit Singh Musafir

CASE NUMBER:  1713547

HOME AFFAIRS REFERENCE(S):           BCC2016/2608135

MEMBER:Amanda Mendes Da Costa

DATE:28 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2018 at 12:34pm

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), r 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 Immigration and Border Protection on 22 June 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 7 August 2016. 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 hairdresser ANZSCO Code 391111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the position to which her application relates is not one which is nominated in an application that seeks to meet the requirements of subregulation 5.19(3) and which has been approved by the Minister.

6. The applicants appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

8. The hearing was held as a combined hearing with the related nomination refusal of Mystik Hair and Beauty Pty Ltd, the applicant’s prospective employer.  The Tribunal notes that Mystik Hair and Beauty Pty Ltd did not appear at the hearing on 17 October 2018.  On 27 November 2018 the Tribunal dismissed the company’s application for review under s.362B(1A)(b) of the Act as the company did not appear before it to give evidence and present arguments at the time and date of the scheduled 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 issue in the present case is whether the applicant is the subject of an approved nomination.

    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. In her decision the delegate found that on 12 May 2017 the nomination lodged by Mystik Hair & Beauty Pty Ltd for the applicant, being a nomination referred to in cl.186.223, was refused by a delegate of the Minister on the grounds that the company did not meet r.5.19 of the Regulations.

14. In her oral evidence the applicant conceded that her prospective employer’s nomination for her position had been refused by a delegate of the Minister and she did not have another nomination.

15. On 30 October 2018 the applicant’s migration agent sent an email to the Tribunal on behalf of the applicant, advising that the applicant had not heard from Mystik Hair and Beauty Pty Ltd and requesting the Tribunal to proceed with its decision as per the available information.

16. Based on the evidence before it, the Tribunal finds that given the nomination in association with the applicant’s visa application has not been approved under r.5.19, and therefore the requirements of cl.186.223 are not met by the applicant.

17. Accordingly the Tribunal finds that the requirements of the Temporary Residence Transition stream have not been met.  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. In respect of the second and third named applicants, their entitlement to a visa is initially dependent on whether the applicant meets the criteria for the grant of a Subclass 186 visa as members of the family unit of a person who has satisfied the primary criteria.

    DECISION

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

    Amanda Mendes Da Costa
    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.