Khanna (Migration)

[2024] AATA 750

Khanna (Migration) [2024] AATA 750 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praveen Khanna

REPRESENTATIVE:  Mr Govind Swamy Pillay (MARN: 0743677)

CASE NUMBER:  2101652

HOME AFFAIRS REFERENCE(S):          BCC2019/5372235

MEMBER:Karen McNamara

DATE:3 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 03 April 2024 at 2:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – welder – subject of approved position nomination – related nomination application refused and application for review withdrawn – late response to invitation to comment and no entitlement to hearing – currently working for another employer, willing to sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

CASE
Hasran v MIAC [2010] FCAFC 40

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 4 February 2021, to refuse to grant Mr Praveen Khanna (the applicant) an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 October 2019. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Welder (First Class) ANZSCO 322313.

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visa because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations, which required Mr Praveen Khanna to be the subject of an approved nomination. The delegate found that the nomination lodged by Roadtrek Pty Ltd (the nominator) was refused by a delegate of the Minister for Home affairs on 2 March 2020.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.186.233(3) was not met and therefore the applicant did not meet cl.186.233 of Schedule 2 to the Regulations.

7. The applicant lodged an application for review with the Tribunal on 12 February 2021. The review application was accompanied by a copy of the delegate’s decision.

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

9. The Tribunal notes that numerous evidence and submissions were lodged by the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.233 of Schedule 2 to the Regulations Nomination of a position.

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

14. On 1 March 2024, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative) to appear before the Tribunal on 27 March 2024 at 10:30 am (NSW time). The invitation requested the applicant to provide all documents he intended to rely on to support his case by 20 March 2024. The invitation further noted “The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.”

15. On 4 March 2024, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient/representative). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. 

16. The information related to information before the Tribunal that suggests there is no approved nomination associated with the applicant’s subclass 186 visa application. On 1 September 2023, the nominating employer, Roadtrek Pty Ltd withdrew their nomination review application, which was accepted by the Tribunal on 19 September 2023.

17. The Tribunal’s letter of 4 March 2024 noted that this information is relevant because cl.186.233(3) requires that the nomination made in relation to the applicant by the nominating employer, has been approved.  

18. The letter further stated:

    “ The nomination relied on to satisfy cl 186.233(3) must be the one that was made at the time of the visa application – it is not possible to rely on another nomination. You must have a related nomination to be able to be granted the visa.

    If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed. You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 18 March 2024. If the comments or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 18 March 2024, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 18 March 2024, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 1 March 2024 to attend a hearing via telephone on 27 March 2024 at 10:30 am. It is important to note that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.”’

19. The invitation to comment/respond was sent to the authorised recipient/representative at the last email address provided in connection with the review and advised as stated and highlighted above, if the comments/response were not provided in writing by 18 March 2024, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

20. The applicant did not provide the comments or a response within the prescribed period and no extension was sought or was granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

21. On 19 March 2024, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient/representative) advising the following;

    “…On 4 March 2024, the Tribunal sent you a letter inviting you to comment on or respond to information. In the letter, you were warned that failure to provide a response by 18 March 2024 to the letter will result in a cancellation of your scheduled hearing.

    To date, the Tribunal has not received a response from you. Accordingly, the hearing scheduled for 27 March 2024 at 10:30am has now been cancelled…”

22. On 20, 21 and 22 March 2024, the applicant via email submitted multiple copies of the following documents to the Tribunal;

    ·Completed response to hearing invitation signed and dated by the applicant 20 March 2024.

    ·Letter of support from Hon Bob Katter MP (undated)

    ·Statement of employment (Cava Hydraulics and Engineering) dated 18 March 2024

    ·Pearson PTE Academic Score report undertaken 17 March 2021

    ·Travel Itinerary applicant (1 May 2021)

23. On 22 March 2024, the applicant via email submitted to the Tribunal a statement declaring as follows;

    “  Hi I am Pravin Khanna. I have missed out on my participation in the tribunal due to my agent not providing me with the necessary details.

    The following are the reasons why I got stuck in this situation:

    1.    I came to Australia on the 27th of July 2019.

    2. I applied for 186 visa while in Australia under the sponsorship from Roadtrek Pty limited. My company nomination got refused and I appealed the decision.

    3. While waiting for the decision the covid 19 pandemic hit. I did my PTE test on the 17th of March 2021.

    4. I got a bridging visa B on the 17th of April 2021 and had to go offshore to apply for visa. I could not go offshore due the pandemic flight cancellations.

    5.    I turned 45 on the 15th of May 2021 and thus could not apply for a permanent visa.

    6. I went to Mount Isa QLD 4825 on the 17th of December 2021 as I got a work offer here. I have since been working for North West mining as a boilermaker since. I have been hired to CAVA contracting solutions and am working at the Mount Isa mines.

    CAVA contracting solutions is ready to sponsor me to work for them.

    7. I am requesting that I be allowed to carry on with the 186 Visa under CAVA         contracting solutions who are willing to provide any support letters or documents you may further require. Their contact people are: John Roberts …………

    8. I am happy to apply for a new visa sponsored by Cava Contracting Solutions if allowed.

    I hope my situation is considered and a favourable decision made.

    Thanks in Advance

    Pravin Khanna.[1]”

    [1] Prepared and transcribed as submitted by applicant (third party contact details redacted).

24. On 25 March 2024, the applicant via email submitted to the Tribunal an amended statement, declaring as follows;

    “  Hi I am Pravin Khanna. I have missed out on my participation in the tribunal due to my agent not providing me with the necessary details.

    The following are the reasons why I got stuck in this situation:

    1.    I came to Australia on the 27th of July 2019.

    2. I applied for 186 visa while in Australia under the sponsorship from Roadtrek Pty limited. I was working for roadtrek when covid hit and I was layed off on the 19th of March. I left Roadtrek and joined BTL repairs on the 5th of April for another 3 weeks. I left BTL because I Had plans to go back to Fiji for my offshore application, which did not eventuate due to the pandemic. ( Contact ……. ). BTL was willing to sponsor me too. My company nomination got refused and I appealed the decision.

    3. While waiting for the decision the covid 19 pandemic hit. I did my PTE test on the 17th of March 2021.

    4. I got a bridging visa B on the 17th of April 2021 and had to go offshore to apply for visa. I could not go offshore due the pandemic flight cancellations.

    5.    I turned 45 on the 15th of May 2021 and thus could not apply for a permanent visa.

    6. I went to Mount Isa QLD 4825 on the 17th of December 2021 as I got a work offer here. I have since been working for North West mining as a boilermaker since. I have been hired to CAVA contracting solutions and am working at the Mount Isa mines.

    CAVA contracting solutions is ready to sponsor me to work for them.

    7. I am requesting that I be allowed to carry on with the 186 Visa under CAVA         contracting solutions who are willing to provide any support letters or documents you may further require. Their contact people are John Roberts.…………

    8. I am happy to apply for a new visa sponsored by Cava Contracting Solutions if allowed.

    I hope my situation is considered and a favourable decision made.

    Thanks in Advance

    Pravin Khanna.”[2]

    [2] Prepared and transcribed as submitted by applicant (third party contact details redacted).

25. The Tribunal has afforded careful consideration to the entirety of the information before it and that provided by the applicant.

26. The Tribunal notes that the applicant claims he has “… missed out on my participation in the tribunal due to my agent not providing me with the necessary details.” The Tribunal is satisfied that the invitation to provide comment was sent to the authorised recipient/representative as notified to the Tribunal by the applicant.

27. In response to the Tribunal’s advice of 19 March 2024, the applicant subsequently provided information on 20, 21, 22 and 25 March 2024, in support of his review application including a signed response to attend a hearing before the Tribunal.

28. As mentioned previously in this decision, where an applicant is invited to provide the comments or a response within the prescribed period in accordance with subsection 359A of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

29. Accordingly, as the applicant failed to provide the comments or response within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

30. The Tribunal is satisfied that the invitation to provide information, was sent to the authorised recipient at the correct email address as provided to the Tribunal, however information was provided after the stipulated timeframe.

31. In the circumstances, the Tribunal finds the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application. The Tribunal, therefore, has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicant’s comments.

32. Whilst the Tribunal has empathy for the applicant’s situation and notes his request to “be allowed to carry on with the 186 Visa under CAVA Contracting solutions”, the Tribunal in conducting a merits review must come to the correct or preferrable decision on the basis of the information before it and in accordance with the applicable law. The Tribunal has no discretion in this matter to waive the requirements of cl.186.233(3). 

33. Having carefully considered the entirety of the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.233(3) of Schedule 2 to the Regulations.

34. As the applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.233 of Schedule 2 to the Regulations is not met.

35. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(10); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.