Manjit (Migration)

[2021] AATA 2225

Manjit (Migration) [2021] AATA 2225 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manjit Kaur
Mr Karamjeet Kaushal
Miss Glory Kaushal

CASE NUMBER:  1904958

HOME AFFAIRS REFERENCE(S):          BCC2018/3305965

MEMBER:Cathrine Burnett-Wake

DATE:20 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 May 2021 at 1:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused –not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

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 18 February 2019 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 31 August 2018. 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 Cook (ANZSCO 351411) with Eagle Boys Parramatta Pty Ltd.

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 made by Eagle Boys Parramatta Pty Ltd was refused.

6. On 2 March 2021, the Tribunal wrote to the applicants by letter inviting them to comment on or respond to information. The particulars of the information being, the nominator’s review before the Tribunal had no jurisdiction, as such the review for the nomination did not proceed. Meaning the nominator’s application for the nominated position was not approved which was relevant as it was a requirement for the grant of the visa that the position specified in the visa application is subject to an approved nomination.

7. On 14 March 2021, the applicant wrote to the Tribunal and provided a variety of documents: including evidence of her current employment and payment of wages, positive skills assessment, and a written submission. The submission relevantly stated:

   I am not pleased with the decision of refusing my nomination. It would not be fair if you reject my visa because he closed his business. It is not my fault; I didn’t break any law. I worked with him for over four years, followed by rules and regulations and I think it satisfies all the visa conditions. I have a few reasons that might convince you to replace the decision of refusal with a new one.

   •         First reason is my achievements. I have many certificates relating my work field. My certificates involve, Certificate 3 in hospitality management, Certificate 4 in cookery, Diploma in hospitality management, Advanced Diploma in hospitality management, and a skill assessment. I also have 5 and a half years of work experience in my field and position (cook).

   •         Second reason is that I have been living in Australia for over 12 years and I have been following all the Australian rules and regulations. I am still working on tax, however, in a different state in the same position.

   •         Thirdly, I must mention that I worked with my employer for more than 4 years. I think that it should sufficient the needs to approve my visa. It just made me suffer, where he is still running the business with his wife as she is the official owner now.  But I am still struggling, this is matter about my life.

8. The applicant attended a hearing before the Tribunal on 23 March 2021.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

11. 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.

12. 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.

13. During the hearing the applicant confirmed that there was no approved nomination and that her former employer’s business Eagle Boys Parramatta Pty Ltd had closed. She however requested that the Tribunal consider her circumstances as reason why her application should be approved and re-stated much of the written submission as provided to the Tribunal on 14 March 2021. The Tribunal explained to the applicant that the criteria it was considering related only to whether there was an approved nomination, and that although the Tribunal empathised with her situation and acknowledged that the closure of the sponsoring business and the refusal of the nomination was beyond her control, these were not relevant to its determination of the issue at hand, which was whether there was an approved nomination.

14. Based on information before the Tribunal, it finds that there is no approved nomination of an occupation relating to the applicant.

15. Therefore, cl 186.223 is not met.

16. 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.

17. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visa to the second and third named applicants as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.