Kaur (Migration)

[2022] AATA 1611

Kaur (Migration) [2022] AATA 1611 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Satvir Kaur
Mr Rupinder Singh Malhans

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  1902111

HOME AFFAIRS REFERENCE(S):          BCC2017/1739580

MEMBER:Katie Malyon

DATE:1 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2022 at 3:49 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – hairdresser – subject of approved position nomination – refusal of related nomination application affirmed on review – applicants currently in third country – no substantive response to tribunal’s invitation to comment and no appearance at hearing – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 353, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
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 (the Act).

2. The applicants applied for the visas on 16 May 2017.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

   Background

4. In the present case, the first named applicant - Indian national Ms Satvir Kaur - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Hairdresser ANZSCO 391111. 

5. The delegate refused to grant the visas on the basis Ms Kaur did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by her employer, Kartar Dhaliwal Pty Ltd (the Company), was refused.   The applicants sought review of the delegate’s decision to refuse their visa application.

6. On 24 February 2022, the Tribunal invited the applicants to attend a teleconference hearing at 1:15 pm (NSW) time on 1 April 2022.  The hearing invitation was sent to the applicants via their representative.

   The Tribunal’s s.359A letter

7. On 3 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants that their visa application had been refused because the Company’s nomination for the position of Hairdresser ANZSCO 391111 in respect of Ms Kaur had been refused and, further, the Tribunal had affirmed the delegate’s refusal of the Company’s nomination in respect of the nominated position for Ms Kaur on 3 November 2021. Accordingly, there is no approved nomination by the Company in relation to the applicants. As a result, the position to which the applicants’ Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singhv MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. In its s.359A letter, the Tribunal requested the applicants provide any comments or response to the information in the Tribunal’s letter on or before 17 March 2022. The applicants’ representative responded to the Tribunal on 16 March 2022 and requested additional time to respond to the Tribunal’s s.359A letter. The representative advised that the applicants are out of Australia. He added that Ms Kaur wishes to speak to her employer and, as such, she has requested an extension of another 4 weeks in which to respond to the Tribunal’s letter. No explanation for the need of another month in which to respond to the Tribunal’s letter was provided. On the same day, the Tribunal acknowledged receipt of the representative’s instructions from the applicants and noted it agreed to an extension until the date of the scheduled hearing on 1 April 2022. The Tribunal noted that the Member will accept any response provided at the hearing on that date.

9. In light of the representative’s advice that the applicants are currently overseas (this is confirmed by the Department’s movement records) the Tribunal requested information as to the applicants’ whereabouts and/or current time zone with a view to determining whether the timing of the hearing on 1 April 2022 might be altered to better accommodate their location.  The representative responded on 21 March 2022 indicating that he is aware that Ms Kaur is now in Canada.  He indicated he has been trying to communicate with her and that he will update the Tribunal.  On 31 March 2022, the representative again wrote to the Tribunal indicating that he had received no further instructions from the applicants.

10. The applicants did not appear before the Tribunal on 1 April 2022 at 1:15 pm (NSW time) to give evidence and present arguments at the scheduled hearing.  The representative advised the Tribunal in writing on 1 April 2022 that he had no ‘further instructions in this matter’. 

11. No comments or response has been provided by the applicants or their representative in response to the information the subject of the Tribunal’s s.359A letter within the extended period, being the date of the scheduled hearing.

12. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their review application. In this regard, the Tribunal has considered: whether, in the circumstances of this case and having regard to the current COVID-19 pandemic evidence that the primary applicant Ms Kaur meets the requirements of cl.186.223(2) of Schedule 2 to the Regulations is likely to be forthcoming; whether the applicants have already had a fair opportunity to provide the relevant information or documentation or, in the alternative, request a further extension of time in which to do so; and, the significance of the information or documents to them. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

13. In the circumstances of this case, the Tribunal considers the applicants have had sufficient time in which to address the issue arising on review, that is, whether the nomination in respect of Ms Kaur has been approved. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review. The Tribunal has determined to make a decision on the review without taking any further action to obtain any information, comments or response from the applicants in accordance with s.359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the nomination of the position of Hairdresser ANZSCO 391111 in respect of the primary applicant Ms Kaur has been approved.

    Nomination of a position

16. 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 primary 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 applicants’ current visa application.

17. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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 of the Regulations), 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 6 months after the nomination of the position was approved.

18. The Company's nomination application was refused by the Department on 17 December 2018 and it applied to the Tribunal for review of that decision. However, on 3 November 2021 the Tribunal affirmed the Department’s decision to refuse the Company’s nomination made in respect of the position of Hairdresser ANZSCO 391111 for Ms Kaur. The applicants have failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter. The applicants’ representative indicated that Ms Kaur had requested an extension of time of up to 4 weeks in which to respond to the information. The Tribunal granted additional time to respond to the adverse information set out in its s.359A letter to the date of the scheduled teleconference hearing, being 1 April 2022. The applicants did not attend the hearing and nor have they provided any response to the information in the Tribunal’s s.359A letter within the extended period for comment.

19. In the circumstances, as the nomination application made by the Company for the position of Hairdresser ANZSCO 391111 to which primary applicant Ms Kaur’s Subclass 186 visa application relates has not been approved, it follows that she does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a 'once off' process: Mortimer J at [90]. Therefore, the Temporary Residence Transition stream requirements in cl.186.223 of Schedule 2 to the Regulations are not met.

20. Ms Kaur 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, the Direct Entry stream or the Labour Agreement stream.  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.

21. The Subclass 186 visa application of the second named applicant, Mr Rupinder Singh Malhans, is based on his being a member of the family unit of a person who meets the primary criteria.  As Ms Kaur does not meet the primary criteria, Mr Malhans does not need criteria for grant of the visa.  Accordingly, the Department’s decision to refuse his application for a Subclass 186 visa must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT

    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.