MAHARJAN (Migration)

[2020] AATA 5317

MAHARJAN (Migration) [2020] AATA 5317 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HERMENDRA MAHARJAN
Mrs MANJU SAPKOTA
Mr KURTIS MAHARJAN
Miss LUNIVA MAHARJAN

CASE NUMBER:  1826981

HOME AFFAIRS REFERENCE(S):          BCC2016/1930632

MEMBER:Amanda Mendes Da Costa

DATE:16 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2020 at 10am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359, 441
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cl 186.223

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 11 September 2018 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 2 June 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 is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant (General) ANZSCO 221111.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

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

7. The applicants were invited under s.360 of the Act to appear before the Tribunal on 15 October 2020 at 3pm.  The hearing invitation was sent to the applicants via their migration agent who was the applicants’ authorised representative and recipient for correspondence from the Tribunal.

8. The applicants did not appear before the Tribunal on the day and at the scheduled time and place and no application for adjournment was either made or granted.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.441A of the Act, the invitation has not been returned to sender and the applicants provided the Tribunal with a hearing invitation response.  No satisfactory reason for the non-appearance has been given.

9. In these circumstances, the Tribunal has decided to proceed to make a decision based on the information provided by the applicants in their application for review.   

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 position to which the application relates is the subject of an approved nomination of a position in the Temporary Residence Transition stream.

    Nomination of a position

12. 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.

13. 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.

14. The Tribunal notes that on 7 August 2020 it confirmed the decision to dismiss the application by F Hijazi and H Hijazi to review a decision made by a delegate of the Minister for Immigration (on 8 August 2018) to refuse to approve a nomination under r.5.19 of the Regulations, for a position for the first named applicant.

15. On 9 September 2020 the Tribunal wrote to the applicants (pursuant to s.359A of the Act) inviting the applicant to respond to or comment in writing to information, which was that the application for approval of the nominated position for him, made by F Hijazi and H Hijazi (the nominator was refused by a delegate of the Minister for Immigration.   The nominator sought a review of that decision but on 7 August 2020 the Tribunal confirmed a decision to dismiss the application for review.  This means that the nominator’s application for the nominated position has not been approved.

16. The Tribunal explained the relevance of this information to the applicants – that as the position (for the first named applicant) specified in the visa application was not the subject of an approved nomination as required by cl.186.223(2), the first named applicant did not satisfy a requirement for the grant of the visa.  The Tribunal gave the applicants until 23 September 2020 to provide any response or comments.

17. On 23 September 2020 the applicants provided a written response to the Tribunal’s s.359A letter, which included the following:

    ·Whilst they understood the basis of the Tribunal’s decision to refuse the nomination application by the nominator, they wished to provide some justifications and details in relation to areas which could assist the Tribunal in assessing the applicants’ review application.

    ·The nominator was a hair salon business located in Sydney.  The business had been operating quite successfully with a regular and loyal clientele.  The business was “working towards growth” and expansion and was relying on the applicant to support the business.

    ·As requested by the Tribunal, all financial records regarding the nominator had been submitted to it.  Those records indicate that the business had the capacity and revenue necessary to support the nomination.  The business had been progressing well and was getting financially stable with decent revenue and ensured all tax liabilities were paid in a timely manner.

    ·The first named applicant was an individual with great skills, knowledge and understanding of the business.  Considering his profile, the owners of the business were heavily reliant on the applicant to assist with the growth of the business.

    ·The expansion of the business would lead to increased revenue and the first named applicant would make a significant contribution to the Australian economy by contributing through his local spending, tax obligations and other living expenses to support local business and the financial sector while in return he would have a successful career and a better life for his family in Australia.

18. Whilst the Tribunal acknowledges that the first named applicant has the potential to make a financial and social contribution to the Australian community (as submitted by the applicants), it finds that as the position (for the first named applicant) specified in the visa application is not the subject of an approved nomination as required by cl.186.223(2), the first named applicant does the requirements for the grant of the visa.  

19. Accordingly, the Tribunal is not satisfied that the first named applicant meets the requirements of cl.186.223.

20. The first named 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.

21. As the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it considers that the second, third and fourth named applicants do not meet the requirements for Employer Nomination (Permanent) (Class EN) visas as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    DECISION

22. 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.