Kaur (Migration)

[2024] AATA 1014

Kaur (Migration) [2024] AATA 1014 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ravinder Kaur
Mr Budh Singh
Miss Riddhamnoor Kaur

REPRESENTATIVE:  Mr Sobaran Singh (MARN: 9791702)

CASE NUMBER:  2213237

HOME AFFAIRS REFERENCE(S):          BCC2017/830671

MEMBER:De-Anne Kelly

DATE:9 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 09 April 2024 at 7:20am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant Manager – late response to s.359A invitation – subject of an approved nomination decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 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 Home Affairs on 22 August 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 March 2017. 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 (Cth) (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 Restaurant Manager.

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 by William Family Trust trading as Dawat Indian Restaurant was refused being the application referred to in cl 186.223(1).

6. The applicant was invited to a hearing and appeared on 25 March 2024.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl186.223(2) which provides as follows.

   (2) The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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 reg 1.13A and reg 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.

12. The Tribunal put to the applicant under s359AA of the Act that on 21 February 2017 the applicant was nominated by the Trustee for William Family Trust trading as Dawat Indian Restaurant for an Employer Nomination Scheme application Subclass 186 visa in the Temporary Residence Transition stream for the position of Restaurant Manager but on 14 September 2023 the Tribunal affirmed the refusal of the employer nomination. As such that was no approved employer nomination and this may be part or all of the reason to affirm the refusal of the primary and secondary applicants visa as there is no approved employer nomination.

13. The applicant chose to respond in the hearing and said she cannot contact the restaurant owner and believes it has been sold to someone else. She has been in hospital and was very nervous and did not know what to do. The Tribunal acknowledged that these situations can be unfortunate and distressing. She was given a further 14 days for further submissions.

14. It was noted that there was a response on 5 April 2024 and the applicant stated that she had hoped to obtain support from her sponsoring employer but could not contact him despite many attempts. She did not make a request for an adjournment or extension of time. It is reasonable to proceed to a decision on this matter.

15. There is no approved employer nomination.

16. Therefore, cl 186.223(2) and cl 186.223 are 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. Mr Budh Singh and Miss Riddhamnoor Kaur were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

19. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore as members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicants therefore do not satisfy cl.186.311.

20. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant the secondary applicants a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.