KAUR (Migration)

[2018] AATA 3585

KAUR (Migration) [2018] AATA 3585 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SANDEEP KAUR
Mr MANPRIT SINGH
Miss EKAMJOT KAUR

CASE NUMBER:  1701654

DIBP REFERENCE(S):  BCC2015/3363437

MEMBER:R. Skaros

DATE:20 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2018 at 11:01am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nominating business deregistered – Nomination no longer available to the applicant – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(4)

CASES
Hasran v MIAC [2010] FCAFC 40

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 18 January 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 15 November 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 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 Sales and Marketing Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination of the position in respect of the applicant made by CS Universal Pty Ltd was not approved.

6. A copy of the delegate’s decision record was provided to the Tribunal. The applicants were represented in relation to the review by their registered migration agent.

7. During the processing of the review, the Tribunal received information from the Department indicating that the nominating employer, CS Universal Pty Ltd (ABN 70158090647), has been in liquidation since 8 July 2017. A current search of the Australian Business Register (ABR) and Australian Securities and Investment Commission records indicate that the ABN for CS Universal Pty Ltd was cancelled on 2 November 2017 and that the company was deregistered on 11 September 2017.

8. On 27 June 2018 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting the review applicants to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information, as described above, included the information received which indicated that the nominating employer had gone into liquidation and current information which indicates that the nominating entity has had its ABN cancelled and that the company has been deregistered, which the Tribunal explained is relevant to the requirement in cl.186.223(4) which requires that the nominated position is still available to the applicant. The Tribunal noted that if it relied on the information, it may conclude that the position for which she was nominated by CS Universal Pty Ltd is no longer available to her and that in the circumstances she would not meet the requirements of cl.186.223 and the decision under review may be affirmed.

9. The invitation was sent to the authorised representative at the last address provided in connection with the review and advised that, if the comments were not provided in writing by 11 July 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

11. On 26 July 2018, the review applicant contacted the Tribunal to enquire about the progress of the application for review. An officer of the Tribunal informed the applicant that a letter was sent to her on 27 June 2018 inviting her to comment. The case note records that the applicant informed the officer that she did not receive the letter and that she will check to see if it has been sent to the correct email address. The officer requested the applicant to update her contact information and confirmed with the applicant the email address the Tribunal had on file for her. The applicant made no further contact with the Tribunal. On 31 July 2018, an officer of the Tribunal attempted to contact the applicant on her mobile phone but was unable to reach her.

12. On 31 July 2018, the Tribunal wrote to the applicants and their authorised representative informing the applicants that even though they had lost their right to a hearing, as they had not responded to the invitation to comment or respond within the prescribed period, the Tribunal has decided to delay the making of its decision on the review and that the applicants had until 3 August 2018 to provide any information they wanted the Tribunal to consider. A courtesy copy of the invitation to provide comment or response dated 27 June 2018 was included in the correspondence.    

13. On 3 August 2018 the Tribunal received a change of address form from the applicants. An officer of the Tribunal contacted the applicant by telephone to clarify if the representative was still the authorised representative, to which the applicant confirmed that this was the case. To date no further correspondence has been received from the applicants or their representative. The Tribunal has decided to proceed to a decision on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirement in cl.186.223(4), which requires that the position for which the applicant was nominated is still available to the applicant.

16. The applicant, who was the relevant Subclass 457 visa holder, was nominated by CS Universal Pty Ltd for a position in the occupation of Sales and Marketing Manager. It was against this position that the applicant made the declaration that was required as part of the visa application.  

17. As noted above, the evidence before the Tribunal indicates that the nominator, CS Universal Pty Ltd, has been deregistered and its ABN cancelled. On the basis of this evidence the Tribunal finds that the position for which the applicant was nominated is no longer available to her.

18. The Tribunal finds that the relevant nominated position is not available to the applicant. The applicant therefore does not meet cl.186.223(4). As cl.186.223(4) is not satisfied, the applicant does not meet cl.186.223 as a whole.

19. The secondary applicants applied for their visas on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

20. 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

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

    R. Skaros
    Member