Matcha (Migration)

[2019] AATA 6916

Matcha (Migration) [2019] AATA 6916 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Snigdha Matcha

CASE NUMBER:  1830998

HOME AFFAIRS REFERENCE(S):          BCC2017/2289394

MEMBER:Alan McMurran

DATE:13 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2019 at 3:59pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – position nomination refused and no application for review made – left employer when previous visa expired – not notified of result of nomination application by employer or agent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 23 October 2018 for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 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 case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Software Engineer (ANZSCO 261313).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 (2) of Schedule 2 to the Regulations because the Minister has not approved a nomination on behalf of the visa applicant, and there is no review sought of the refusal of the nomination.

6. The applicant appeared before the Tribunal on Friday, 13 December 2019 to give evidence and present arguments. The applicant was unrepresented in the proceedings. The applicant did not require an interpreter and the Tribunal was satisfied upon completion of the hearing in the English language that the applicant had participated without any language difficulties.

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 applicant is the subject of a nomination application which the Minister has approved.

   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 applicant gave evidence that she had come to Australia on 2 January 2005, had completed her studies in 2008 and has been working in the software industry in Sydney both part-time and full-time since 2006. She said she had been working for the nominator, Softlabs Pty Ltd since employed by them in 2014 as a software engineer. The applicant said she had been successfully nominated by the nominator at that time (2014) for a 457 visa, which had expired in about September or October 2018.

12. The applicant said her employer had agreed in June 2017 to nominate her for the visa, the subject of this review while she was still employed there. She said when her 457 visa expired in 2018, she was compelled to leave that employment.

13. The Tribunal wrote to the applicant on 27 November 2019 under section 359A of the Act with an invitation to comment and provide further information. The Tribunal letter informed the applicant that on the available information, that may be the reason or part of the reason for affirming the Department’s decision under review. The particulars of the information provided were the refusal on 4 September 2018 of the nomination lodged by the applicant’s employer, and the fact that the decision to refuse the nomination was not the subject of a current application for review.

14. On 6 December 2019, the applicant responded to the Tribunal’s letter[1], and informed the Tribunal that when the nomination was refused on 4 September 2018, the applicant was in India and was not notified about the nomination outcome. The applicant thought there might have been something wrong with the visa, and on her return to Australia on 4 October 2019 contacted her employer who informed her that the nomination was not approved. The applicant realised also the time for review of that decision had passed. She said her employer did not provide any reason why the nomination was refused and why there was no review. She said that she had sought to contact both the employer and the migration agent many times but they “never answered my calls after that or didn’t assist me with any proper information”.

    [1] T case file at ff 30

15. The applicant said that she had now made her own skilled visa application which was under consideration.

16. The applicant said that she had been living in Australia for approximately 14 years, that her documents “were all good” and that she could not understand why the nomination had not been approved in the first place, since her earlier 457 visa had been approved in 2014.

17. The Tribunal reminded her that the 457 visa was a temporary visa and no guarantee of permanent residency. The Tribunal explained to the applicant that the nomination application and her visa application had been considered separately by the Department and it was no fault of the agent or the employer if they were not dealt with together. The Tribunal explained that if the nomination did not succeed, then the visa application similarly must fail.

18. The Tribunal had some empathy for the visa applicant who had not been provided information either by the agent appearing for the employer, or her former employer, even though she has invested significant finances and time in the application. The decision of the Tribunal however is not predicated upon the actions of either the employer or the migration agent, which actions and communications are matters between themselves and the applicant personally.

19. The Tribunal has had regard to the available information and the submissions from the applicant and finds it is satisfied that the visa applicant is not the subject of a nomination that the Minister has approved.

20. Therefore, cl.186.223 is not met.

21. As it is a requirement that all criteria for the subclass 186 visa are met, where one criteria has not been met, the Tribunal is not required to consider the remaining criteria.

22. 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

23. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    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.