Modi (Migration)

[2021] AATA 2043

Modi (Migration) [2021] AATA 2043 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dhruti Hemantkumar Modi
Mr Hiroiz Viraf Chinoy

CASE NUMBER:  1823770

HOME AFFAIRS REFERENCE(S):          BCC2017/3930567

MEMBER:Amanda Mendes Da Costa

DATE:10 June 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 10 June 2021 at 12.32pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 1 August 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 25 October 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. 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.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On 18 May 2021 the Tribunal wrote to the applicants inviting them to comment on or respond (in writing) to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review.

8. This information was that the application for approval of the nominated position made by Sonia Verma (the nominator) was refused by a delegate of the Minister for Home Affairs. The nominator sought review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 11 May 2021.

9. The Tribunal explained to the applicants that this information was relevant to their review because it was a requirements for the grant of the visa that the position specified for the applicant was the subject of an approved nomination.

10. The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in the applicant’s visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

11. The Tribunal advised that any written response by the applicants should be made by 1 June 2021.

12. The applicants did not provide any response to the Tribunal’s invitation by 1 June 2021, or at all.  The Tribunal considers that the applicants have been given sufficient opportunity to provide information to the Tribunal regarding the review and it is appropriate to proceed to make a decision in the matter without further requests for information being made of the applicants.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

15. 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.

16. 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.

17. The Tribunal finds that the application for approval of the nominated position made by Sonia Verma (the nominator) was refused by a delegate of the Minister for Home Affairs. The nominator sought review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 11 May 2021.

18. Accordingly, the Tribunal is not satisfied that the position to which the applicant’s visa application relates is not the subject of an approved nomination by her prospective employer Sonia Verma or any other nominator. 

19. Therefore, cl 186.223 is not met.

20. The Tribunal finds that as the applicant has not met the primary criteria for the grant of an Employer Nomination (Permanent)(Class EN) visa, the second named applicant does not meet the criteria for the grant of the visa as a member of the family unit of a person who has meet the criteria for the grant of the visa. 

21. 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

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

    Amanda Mendes Da Costa
    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.