Mehant (Migration)

[2021] AATA 5583

Mehant (Migration) [2021] AATA 5583 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaurav Mehant
Mrs Neha Mehant
Mr Kapish Mehant

CASE NUMBER:  1828752

HOME AFFAIRS REFERENCE(S):          BCC2017/4876457

MEMBER:Glenn O’Brien

DATE:9 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 June 2021 at 4:16pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; 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 17 September 2018 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 20 December 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 (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. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review.  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).

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 nominated position of the applicant was not approved by the Minister.

6. The primary applicant appeared before the Tribunal on 29 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Prasad.

7. Following the review hearing, on 25 May 2021, the Tribunal wrote to the applicant pursuant

   to s 359A of the Act inviting him to provide comments on, or response to, the following
   information:

   The application for approval of the nominated position made by DDD Indian Pty
   Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The
   nominator sought a review of that decision, but it was recently affirmed by the
   Tribunal. This means that the nominator’s application for the nominated position
   has not been approved.

   This information is relevant to the review because it is a requirement for the grant of
   the visa that the position specified in your visa application is the subject of an
   approved nomination.

   If we rely on this information in making our decision, we may find that the position
   specified in your visa application is not the subject of an approved nomination. This
   would mean that you do not satisfy a requirement for the grant of the visa and that we
   must affirm the decision that is under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 8 June 2021.

8. At the time of the decision the applicant had not provided any comment or response to the Tribunal’s invitation dated 25 May 2021.

9. The applicants were represented in relation to the 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 nominated position to which the applicant’s position relates has been approved by the Minister in accordance with cl 186.223(2).

    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 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.

14.   The nomination of the applicant for the position of Cook (ANZSCO 351411) by DDD Indian Restaurant Pty Ltd was refused and the Tribunal affirmed the decision of the delegate to refuse the nomination application on 24 May 2021. Following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of a position relating to the applicant.

1. The nominee does not therefore satisfy cl 186.223(2).

2. Therefore, cl 186.223 is not met.

3. 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.

   Secondary applicants

4. As the primary applicant does not meet the criteria for a Subclass 186 visa, the second and third-named applicants do not meet the criteria for the grant of a Subclass 186 visa as they are not members of a family unit of a person that holds a Subclass 186 visa on the basis of satisfying the primary criteria.

   DECISION

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

   Glenn O’Brien
   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.