KUMAR (Migration)

[2019] AATA 3070

KUMAR (Migration) [2019] AATA 3070 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MANOJ KUMAR
Mrs POOJA KAMBOJ
Miss SHYNE KAMBOJ

CASE NUMBER:  1726150

HOME AFFAIRS REFERENCE(S):          BCC2016/3208629

MEMBER:Alan McMurran

DATE:1 May 2019

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 May 2019 at 3:00pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – nomination not approved – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 186.223(2)

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 11 October 2017 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 27 September 2016. 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 Temporary Residence Transition stream, to work in the nominated position of Cook. The applicant is a 35-year-old citizen of India. The applicant’s spouse and child, as members of his family, are secondary applicants. The applicant holds qualifications with a Certificate III in Cookery and a Diploma in Hospitality from the Illawarra Business College.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 (2) of Schedule 2 to the Regulations because the Minister has not approved the nomination of the visa applicant made by Neelam Malhotra Pty Ltd. On 5 April 2019, the Tribunal on review of that decision by the sponsor affirmed the decision to refuse the nomination.

6. On 10 April 2019, the Tribunal wrote to the visa applicants to inform them the nomination decision had been affirmed by the Tribunal. The Tribunal invited the applicants to give comments or respond in reply, as the refusal of the nomination application would be the reason or part of a reason for affirming this decision under review to refuse the visas. The applicants were asked to respond by 24 April 2019, but they did not do so. As at the date of decision, the Tribunal has received no further communication from the applicants or any representative on their behalf.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Minister has approved the nomination for the occupation of Cook in favour of the visa applicant.

   Nomination of a position

9. 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.

10. 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.

11. The Tribunal has available to it extracts in electronic form from the Department’s file, including a copy of the Tribunal’s decision on 5 April 2019 in the application for review by the sponsor.[1]

    [1]Tribunal case file 1716990

12. The Tribunal also has available the limited information on the Tribunal’s file, which does not include any further submissions made either by the applicants or any representative on their behalf, and contains only the application for review and correspondence from the Tribunal to the applicants dated 11 October 2017, 30 October 2017 and 10 April 2019. There is nothing on the Tribunal’s file to evidence any responses at all from the applicant’s since the filing of the application for review or in response to the Tribunal’s correspondence.

13. In short, the evidence has not changed since the determination of the nomination application by the Department and upon review by the Tribunal, and the lodgement of the visa application separately by the applicants, and material filed by them in support of the visa applications. That information includes the application itself, information supporting a bridging visa application, evidence of the applicant’s educational qualifications, Indian passports, birth certificates and other personal particulars. It should be noted that on 19 July 2017, the Department wrote to the visa applicant inviting comment and requesting information in response to the refusal of the nomination by the Department. The applicant did not reply to that correspondence.

14. Without an approved nomination, the visa applications cannot succeed. The Tribunal has no discretion to waive the criterion, as set out in the regulation 186.223(2).

15. The Tribunal is also satisfied that the applicant has not sought to meet the requirements in cl. 186.233, which apply to the Direct Entry stream, and similarly cl. 186.242 relating to  labour agreements in place, and which does not apply to the nominated occupation.

16. The Tribunal has reviewed all of the information available and is satisfied there are no other relevant facts, matters and circumstances for it to consider, other than as set out above. The Tribunal finds therefore that without an approved nomination by the Minister, this application for a related visa by the applicant, for the occupation of Cook, must fail. The Tribunal is satisfied and finds on the available evidence that there is no approved nomination.

17. Therefore, cl.186.223 is 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.

    Secondary Applicants

19. The secondary applicants are members of the family unit of the applicant (primary applicant), being his spouse and child.

20. Regulation 186.311 sets out that each member of the family unit of the primary applicant relies upon the primary applicant holding a subclass 186 visa, granted on the basis of the primary applicant satisfying the primary criteria for the grant of the visa, and the secondary applicants having made a combined application with the primary applicant.

21. In this instance, as the primary applicant has not satisfied the primary criteria where the Minister has not approved the nomination, the secondary applicants are therefore also unable to comply, and cl. 186.311 is not met.

    DECISION

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

    Alan McMurran
    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.