Kharel (Migration)

[2020] AATA 1224

Kharel (Migration) [2020] AATA 1224 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sarala Kharel

CASE NUMBER:  1803791

HOME AFFAIRS REFERENCE(S):          BCC2015/3377158

MEMBER:Penelope Hunter

DATE:23 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2020 at 11:47am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – late response to s 359A invitation – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
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 5 February 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 November 2015. 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 Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager for her nominated employer AYDINMAINTENANCE Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination lodged by the applicant’s nominated employer was refused by the Department on 5 January 2018.

6. The Tribunal received an application for review from the applicant of the delegate’s decision on 13 February 2018. The applicant was represented in relation to the review by her registered migration agent.

7. On 18 March 2020, the Tribunal wrote to the applicant pursuant to the provisions of s. 359A of the Act, inviting the applicant to provide comment on information it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal’s records that it was found to have no jurisdiction in relation to the application for review lodged by AYDINMAINTENANCE Pty Ltd. The Tribunal explained the relevance of the information and informed the applicant that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements of cl. 186.223(2).

8. The invitation was sent to the representative of the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 1 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. On 2 April 2020, the applicant sent an email to the Tribunal. This response from the applicant was received outside the timeframe as set out in the Tribunal’s letter pursuant to s.359A of the Act. The applicant set out that she would not be able to come to the Tribunal for a hearing as she had a 4 month old baby and that her representative also refused to attend a Tribunal hearing. The applicant further set out that she did not have any further documents to submit other than what had already been sent to the Department and the Tribunal. Finally, the applicant submitted:

   I have worked so hard for everything so far and applied my residency. It’s been almost 7 yrs stuck in same thing and at the end I don’t know what result would I get. I have sacrificed my study my time and so on. I thought I would get residency and continue my further study and do something good for the nation.

   I don’t know if the decision would be in my favour or not. But please let me study that’s the only thing I could request you.

10. This response from the applicant was received outside the timeframe provided in the Tribunal’s s.359A.

11. The Tribunal is satisfied that the invitation was properly sent to the applicant’s authorised recipient. The invitation informed the applicant that the comments had to be provided in writing by 1 April 2020. The applicant had not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the 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.

12. In the circumstances, the Tribunal has decided to proceed to decision on the information before it. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the nomination associated with the applicant’s visa application has been approved.

    Nomination of a position

15. 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.

16. 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.

17. The applicant applied for the visa on the basis of a nomination of a position made by AYDINMAINTENANCE Pty Ltd. As set out in the delegate’s decision record, submitted by the applicant to the Tribunal, the Department of Home Affairs refused the nomination made by AYDINMAINTENANCE Pty Ltd on 5 January 2018.

18. AYDINMAINTENANCE Pty Ltd applied to the Tribunal for a review of the Department’s decision to refuse the nomination. On 15 October 2019, the Tribunal determined that it had no jurisdiction in relation to that application for review. This means the decision of the Department to refuse the nomination remains unchanged.

19. Tribunal notes that the applicant’s claim that she has sacrificed 7 years, her time and her study and that she wished to continue her study. The Tribunal’s role is to review the decision of the Department, the application under review is for a 186 visa in relation to the applicant working in a nominated position, not for her to undertake study. The Tribunal does not have the power to grant to the applicant a visa to study.  The Tribunal has considered the submission of the applicant, and she has not provided any information to dispute that the finding that AYDINMAINTENANCE Pty Ltd has no ongoing application for review.

20. On the evidence before it the Tribunal finds that the relevant nomination by AYDINMAINTENANCE Pty Ltd for the application under review has not been approved. It therefore follows that the applicant has not met cl.186.223(2) and cl. 186.223 of Schedule 2 to the Regulations has not been met as a whole.

21. 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.

    DECISION

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

    Penelope Hunter
    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.