KAUR (Migration)

[2017] AATA 2121

KAUR (Migration) [2017] AATA 2121 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simerjeet KAUR
Mr Jagdeep SINGH
Master Harangad Veer SINGH

CASE NUMBER:  1618928

DIBP REFERENCE(S):  BCC2014/1798264

MEMBER:R. Skaros

DATE:30 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2017 at 12:23pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry cook – Nomination refused – No valid nomination

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 on 26 October 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 to the Department of Immigration for the visas on 23 July 2014. 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 pastry cook. 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 of Schedule 2 to the Regulations because nomination in respect of the applicant was not approved.

6. The applicant appeared before the Tribunal on 20 September 2017 by telephone to give evidence and present arguments. The Tribunal was assisted by 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 applicant meets the requirements in cl.186.223.

   Nomination of a position

9. 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.

10. 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.

11. According to information in the decision record, a copy of which was provided to the Tribunal, the applicant was nominated for a position by Majorstone Pty Ltd under the employer nomination temporary residence transition stream.

12. The above-mentioned nomination was refused by the Department on 16 November 2015. At the hearing the Tribunal discussed with the applicant the requirements in cl.186.223 and the evidence before it which indicates that she does not meet cl.186.223(2). In response, the applicant stated that she lodged the review application to get justice. She worked very hard for the nominator and had long shifts. She was shocked when the employer told her not to go to work the next day. She has a family and a child. She stated that her employer did not inform her about the nomination and when the Department informed her she had no choice but to apply for review. She has studied and worked hard in Australia and hopes to work in her field.

13. The Tribunal has had regard to the applicant’s evidence however, as explained to her at the hearing, the Tribunal has no discretion in these circumstances and must make its decision in accordance with the legislative requirements.

14. Clause 186.223(2) requires that the Minister has approved the nomination of the position in respect of the applicant. In this case, the relevant nomination was refused. It follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 is not met as a whole.

15. 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.

16. The secondary applicants applied for the visas on the basis of being members of the family unit of the primary visa applicant. There is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary criteria for the visa. As the secondary applicants are not members of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria, the Tribunal must also affirm the decisions in respect the secondary applicants.

    DECISION

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

    R. Skaros
    Member