Mandeep Kaur (Migration)

[2023] AATA 2610

Mandeep Kaur (Migration) [2023] AATA 2610 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Mandeep Kaur
Mr Sandeep Singh
Miss Harkirat Kaur

CASE NUMBER:  2216028

HOME AFFAIRS REFERENCE(S):          BCC2021/211750

MEMBER:Nicola Findson

DATE:31 July 2023

PLACE OF DECISION:  Perth

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

Statement made on 31 July 2023 at 6:22pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of ICT Customer Support Officer – no approved nomination – nominating employer ceased business – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; 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 Home Affairs on 20 October 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 February 2021. 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 (Cth) (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 ICT Customer Support Officer.

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 nomination in relation to the applicant had been refused.

6. On 1 November 2022, the applicants applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record.

7. The applicant appeared before the Tribunal, by telephone, on 12 May 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 reg 1.13A and reg 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 applicant has provided to the Tribunal a copy of the delegate’s decision record for the purpose of the review.  It records that the applicant applied for the visa on the basis of a nomination of a position by Laxmii Narayan Pty Ltd. On 16 September 2022, the nomination in relation to the applicant was refused by the Department. 

12. At the hearing the Tribunal explained to the applicant the requirements of cl 186.223.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The Tribunal explained to the applicant that it does not have the discretion to waive the requirements of cl.186.223, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.  The applicant indicated that she understood the requirements for the visa. 

13. In addition, in accordance with the procedure in s 359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which she made the required declaration in her visa application, was refused by the Department on 16 September 2022 and that the nominator had not applied for review of that decision. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if it relied on the information it would go on to find that the relevant nomination in relation to her has not been approved. The Tribunal further explained that it may then go on to find that she does not meet the requirements in cl 186.223 and in the circumstances the decision under review may be affirmed.

14. The applicant elected to respond immediately.  She told the Tribunal that she had commenced working for Laxmii Narayan Pty Ltd, as an ICT Customer Support Officer, four years before she applied for the visa.  She told the Tribunal that in February 2017, she was granted a Subclass 457 visa, sponsored by Laxmii Narayan Pty Ltd to work in the position.  The applicant explained that she continued to work for Laxmii Narayan Pty Ltd until November 2021, at which time her nominating employer closed its business.  She said she understood her application was dependent on there being an approved nomination, but stated that she was not the party at fault in relation to the refusal of the nomination application.  She told the Tribunal that she had worked very hard for her employer, and to make a life for herself and her family in Australia, and that it was so unfortunate that circumstances beyond her control meant that the visa would not be granted.

15. The applicant told the Tribunal that she was now working for another IT company and was currently awaiting the outcome of a Subclass 190 visa. 

16. The issue in this case is whether the relevant nomination in relation to the applicant has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Laxmii Narayan Pty Ltd, about which the visa applicant made the required declaration in her visa application, has been refused. Laxmii Narayan Pty Ltd did not apply for review of the Department’s decision to refuse the nomination. In the circumstances, the Department’s decision refusing the nomination stands. As the relevant nomination has been refused, it follows that the applicant does not meet the requirements in cl 186.223(2).

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.

19. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicants do not satisfy the secondary criteria for the visa.  Consequently, the second-named applicants do not satisfy cl.186.311 and the decision under review must be affirmed in respect of them.

    DECISION

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

    Nicola Findson
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.