Kaur (Migration)

[2022] AATA 2220

Kaur (Migration) [2022] AATA 2220 (27 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur Mr Ajay Pal Singh Master Harjaap Singh

CASE NUMBER:  1902217

HOME AFFAIRS REFERENCE(S):           BCC2017/611723

MEMBER:  Alison Mercer

DATE:  27 June 2022

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 27 June 2022 at 10:09am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) –­ Temporary Residence Transition stream – Hairdresser – subject of ­an approved nomination – decision on the paper – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 360, 362B
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311

CASES
Singh v MIBP [2017] FCAFC 105

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 17 January 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicants applied for the visas on 14 February 2017. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

1. 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.

1. 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 Hairdresser.

1. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations as she was not the subject of an approved nomination by an Australian employer. The delegate found that the nomination of the applicant by her employer, Kartar Dhaliwal, had been rejected by the Department on 17 December 2018. As she had not made any claims against the other stream, she could not be granted a subclass 186 visa. The delegate also refused to grant subclass 186 visas to the second and third named applicants (the applicant’s husband and child) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

1. The Tribunal received a review application from the applicants on 31 January 2019. It was accompanied by a copy of the delegate’s decision.

1. On 8 June 2022, the Tribunal wrote to the applicants to invite them to a telephone hearing on 28 June 2022.

1. On 10 June 2022, the Tribunal wrote to the applicants again to invite them, pursuant to s.359A, to comment on or respond to information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal advised that in the Department’s decision of 17 January 2019 to refuse the applicants the visas, the delegate found that the first named applicant did not satisfy cl.186.223(2) because she was not the subject of an approved nomination by her proposed employer, Kartar Dhaliwel. This was because the Department had refused to approve the nomination of her by that business. The Tribunal noted that the delegate had refused to grant a visa to the second and third named applicants (the applicant’s spouse and child) on the basis that they did not satisfy cl.186.311, which required them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to suggest that they met the primary visa criteria in their own right.

1. The Tribunal advised that its records indicated that, subsequently, the applicants applied to the Tribunal for review of the decision to refuse them subclass 186 visas on 31 January 2019, and that Kartar Dhaliwel also applied to the Tribunal for review of the decision to refuse to approve its nomination. The Tribunal further advised that:

·on 17 February 2022, the Tribunal (differently constituted) made a decision to affirm the Department’s decision to refuse to approve Kartar Dhaliwel’s nomination of the first named applicant [AAT – MRD decision 1900250 of 17 February 2022]; and

·accordingly, there was currently no approved nomination by Kartar Dhaliwel for the position of Hairdresser in relation to the first named applicant, and

·the decision to refuse that nomination was no longer under review by the Tribunal.

1. The Tribunal advised that this information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the first named applicant was not the subject of an approved appointment made by the same employer who nominated her (Kartar Dhaliwel), as required by cl.186.223; and

   ·this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it is a requirement that she met cl.186.223 at the time of decision; and

   ·the second and third named applicants were not members of the family unit of a person who held a subclass 186 visa, as required by cl.186.311, and there was no evidence that they met the primary visa criteria in their own right. This would be the reason (or part of the reason) for the Tribunal to affirm the decision under review in relation to them.

1. The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a new nomination by a new employer (or the first named applicant’s original employer) now would not satisfy cl.186.223 in respect of a subclass 186 visa application lodged prior to 18 March 2018.

1. The Tribunal invited the applicants to give comments or respond to this information by 24 June 2022, noting that if the Tribunal did not receive their comments or response within the period allowed or as extended, the Tribunal might make a decision on the review without taking any further action to obtain their views on the information, and the applicants would also lose any entitlement they might otherwise have had under the Migration Act 1958 to appear at a hearing, and the hearing scheduled for 28 June 2022 would be cancelled.

1. On 14 June 2022, the Tribunal received a response from the applicants indicating that they declined the invitation to a hearing and wished the Tribunal to make a decision on the papers in their case. They also asked the Tribunal to remove the third named applicant from the review application, on the basis that he had been granted Australian citizenship.

1. Accordingly, the Tribunal cancelled the hearing on 28 June 2022 and has proceeded to make its decision on the available evidence, as it is authorised to do pursuant to ss.360 and 362B of the Act.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first and second named applicants, and that it has no jurisdiction with respect to the third named applicant.

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

Nomination of a position

1. 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.

1. 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.

1. It is not disputed that the nomination of the applicant lodged by her employer, Kartar Dhaliwel, was refused by the Department, and that on 17 February 2022, the Tribunal (differently constituted) affirmed that decision. It is no longer under review by the Tribunal.

1. It is a requirement for the Temporary Residence Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,1 and, on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.2

1. This was the view taken in Singh v MIBP [2017] FCAFC 1053 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.4

1 Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

2 That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

3 Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

4 See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of

1. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.

1. Accordingly, the Tribunal must find that the first named applicant is not the subject of an approved nomination, as required by cl.186.223(2) and thus cannot meet cl.186.223 as a whole. She therefore cannot be granted a subclass 186 visa.

1. The first named 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.

1. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visa to the second applicant, as it finds that he does not meet the secondary visa criteria in cl.186.311 to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that he meets the primary visa criteria in his own right.

1. The applicants’ advice that the third named applicant was granted Australian citizenship is confirmed by their provision of a copy of his Australian citizenship certificate indicating that it was conferred on 15 January 2020.

1. As the third named applicant is now an Australian citizen, he no longer has standing under

   s.338 of the Act to seek review of a decision to refuse to grant him a visa as that section specifies only decisions to refuse visas to non-citizens.

DECISION

1. The Tribunal affirms the decision not to grant the first and second named applicants Employer Nomination (Permanent) (Class EN) visas.

1. The Tribunal has no jurisdiction in relation to the third named applicant.

Alison Mercer Member

cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

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.