Kumar (Migration)

[2019] AATA 1497

Kumar (Migration) [2019] AATA 1497 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sunil Kumar
Mrs NISHA KUMARI
Miss KAVYA JANGRA

CASE NUMBER:  1615268

HOME AFFAIRS REFERENCE(S):           BCC2015/4112305

MEMBER:Amanda Mendes Da Costa

DATE:7 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 January 2019 at 8:45am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Motor Mechanic (General) – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223, r 1.13

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 Immigration and Border Protection on 14 September 2016 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 30 December 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic (General) ANZSCO 321211.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the applicant’s prospective employer, Sonu Motors Pty Ltd, being the nomination referred to in cl.186.223(1) was refused by a delegate of the Minister on 14 July 2016.

6. The applicants appeared before the Tribunal on 22 November 2018 to give evidence and present arguments.  The hearing was conducted as a combined hearing with the review hearing for the applicant’s nominator, Sonu Motors Pty Ltd.  The Tribunal notes that the company did not appear at the hearing.

7. The applicants were represented in relation to the review by their registered migration agent.

8. On 18 December 2018 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on information which it considered would be the reason or part of the reason for affirming the decision under review.  That information was that on 10 December 2018 the Tribunal dismissed the application for review lodged by Sonu Motors Pty Ltd.   The application for review was lodged by the company in respect of a decision by a delegate of the Minister dated 4 July 2016, in which the delegate refused to grant an application for nomination for the position of Motor Mechanic (General) ANZSCO 321211 for Mr Kumar, under the Temporary Residence Transition Stream.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 2 January 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments.

10. The applicants have not provided the comments within the prescribed period and no extension has been granted.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

13. 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.

14. 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.

15. In his oral evidence, the applicant told the Tribunal that he was employed by Sonu Motors Pty Ltd between October 2013 and March 2017.  He ceased that employment due to stress and because he wished to attend his brother’s wedding in India.  After two to three months, his former employer engaged another employee to fill his role.  As this employee was prepared to work for a lower salary than the applicant, Sonu Motors Pty Ltd was not prepared to re-employ the applicant.

16. The applicant said that since ceasing his employment with Sonu Motors Pty Ltd he had been working as a driver whilst seeking further employment as a mechanic.  The applicant confirmed that there was no other approved nomination for a position of Motor Mechanic (General) ANZSCO 321211 for him.

17. As there is no approved nomination for the applicant’s position of Motor Mechanic (General), the Tribunal finds that the requirements of cl.186.223 are not met.

18. 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.

19. In relation to the second and third named applicants, the Tribunal finds that as the applicant does not satisfy the criteria for the grant of a subclass 186 visa, the second and third named applicants do not meet the criteria for subclass 186 visas as members of the family unit of a person who has satisfied the primary criteria.

    DECISION

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

    Amanda Mendes Da Costa
    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.