Kaur (Migration)

[2018] AATA 2606

Kaur (Migration) [2018] AATA 2606 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harinder Kaur
Mr Kulbir Singh
Master Anantveer Singh Sahota
Miss Avleen Kaur Sahota

CASE NUMBER:  1606644

DIBP REFERENCE(S):  BCC2015/2639156

MEMBER:Cathrine Burnett-Wake

DATE:25 July 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 25 July 2018 at 11:29am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 186.223(3), 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 3 May 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 10 September 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 the Temporary Residence Transition stream, to work in the nominated position of Cook.

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 nomination lodged by the sponsor, Sanjeev Johri Pty Ltd AFT Johri Family Trust was refused by the Department, as such there was no approved nomination.

6. On 8 June 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

7. The particulars of the information were that the application for approval of the related nominated position, made by, Sanjeev Johri Pty Ltd AFT Johri Family Trust, was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but it was recently affirmed by the AAT. Meaning that the nominator’s application for the nominated position has not been approved.

8. It was explained in the letter to the applicants that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and, if it made this finding, the Tribunal would have no alternative other than to affirm the decision under review.

9. The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response, or any request for an extension of time in which to do so, by 22 June 2018, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

10. On 21 June 2018, the applicants wrote to the Tribunal outlining they had not heard from their employer and asking they be updated on their matter. Although the applicants did not specifically comment on the particulars of the letter provided pursuant to s.359A of the Act, as they responded within time, the Tribunal set a hearing.

11. On 25 July 2018, the applicant attended a hearing with the Tribunal to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

14. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

15. 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

16. Sanjeev Johri Pty Ltd AFT Johri Family Trust’s nomination application was refused by the Department and that decision was affirmed by the Tribunal. At hearing the applicant conceded that the related nomination had been affirmed and that the business had closed down over 1-year ago. She requested the Tribunal take into consideration their circumstances that she had no control over the closure of her former employers business and that another colleague had submitted the same residency application with the Department that was approved so it was not fair her application was refused.

17. The Tribunal outlined to the applicant that it had no discretion to waive the nomination approval requirement. The Tribunal empathised with the applicants situation and acknowledged that they were a victim of circumstances as they had no control over the closure of the business, yet it had no power to make a favourable decision as the nomination had not been approved.

18. As the nomination application for the position to which the applicants Subclass 186 visa application relates has not been approved cl.186.223 of Schedule 2 to the Regulations is not met.

19. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Transitional Residence 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 Direct Entry stream have not been met, the decision under review must be affirmed.

20. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    Member