MANCHANDA (Migration)

[2021] AATA 264

MANCHANDA (Migration) [2021] AATA 264 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Amandeep Manchanda
Manish Manchanda
Juben Manchanda
Maanya Manchanda

CASE NUMBER:  1808516

HOME AFFAIRS REFERENCE:               BCC2017/2189706

MEMBER:Lilly Mojsin

DATE:10 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 February 2021 at 10:43am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359B(2), 359C(1), 360(3)
Migration Regulations 1994 (Cth), r 4.17(4), Schedule 2, cls 186.223(1), 186.311(a)

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 9 March 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 21 June 2017. 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 review, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Hairdresser.

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 Shashi Beauty Salon Pty Ltd for the position Hairdresser ANZSCO 391111, was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicant appeared before the Tribunal on 23 January 2020 to give evidence and present arguments.

7. On 20 January 2021 the Tribunal wrote to the applicant, pursuant to s.359A of the Act,  advising that on 15 January 2021 the Tribunal affirmed a decision of the Delegate of the Minister for Home Affairs refusing Shashi Beauty Salon Pty Ltd approval of a nomination of position Hairdresser ANZSCO 391111. The applicant was advised that her comments or response to the s.359A invitation should be received by 3 February 2021.

8. Section 359C provides that if an applicant is invited to comment on or respond to information under section 359A and does not do so within the time given to do so, then the Tribunal may proceed to make a decision on the review. Additionally, under s.360 of the Act, if an applicant does not provide comments or respond to a s.359A letter within the allowable period, then the applicant has no right to a hearing before the Tribunal.

9. A person invited to give information under s.359A is required to provide it within the prescribed period: s. 359B(2), and the prescribed period is 14 days after receipt of the invitation: Reg. 4.17(4). Accordingly, the Tribunal finds that the period for the applicant to respond to the invitation concluded at the end of 3 February 2021.

10. The applicant did not respond.

11. As the applicant did not respond to the invitation within the prescribed period, the Tribunal finds that the applicant did not provide the information requested in the invitation of 20 January 2021 within the time prescribed by r. 4.17(4).

12. The Tribunal is therefore able to make a decision on the review without taking any further action to obtain the information: s.  359C (1), and the applicants are not entitled to appear before the Tribunal: s. 360(3). 

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Clause 186.223 as applicable in this review 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. On 20 January 2021 the Tribunal wrote to the applicants pursuant to s. 359A advising the applicant that the nomination had not been approved by the Tribunal. The applicants did not respond.

16. As the nomination made by Shashi Beauty Salon Pty Ltd of the position Hairdresser ANZSCO 391111 was refused by the Tribunal on 15 January 2020[1], the Tribunal finds cl.186.223(1) is not met.

    [1] AAT 1804604

17. Relevantly cl. 186.311 states:

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

18. In regard to the 2^nd, 3^rd and 4^th named applicants, as they are not members of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, clause 186.311(a) is not satisfied.

19. 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

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

    Lilly Mojsin
    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.