Nagpal (Migration)

[2024] AATA 996

Nagpal (Migration) [2024] AATA 996 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Harpreet Kaur Nagpal
Mr Daljeet Nagpal
Miss Jaap Nagpal
Miss Japji Nagpal
Master Tanveer Singh Nagpal

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  2112000

HOME AFFAIRS REFERENCE(S):          BCC2018/3395914

MEMBER:Alan McMurran

DATE:23 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2024 at 4:39pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

CASES

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 8 September 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2021 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 primary applicant, Ms Harpreet Kaur Nagpal, and her family members, as secondary applicants in a combined application, applied for the visas on 7 September 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 who are applicants for the visa need satisfy only the secondary criteria.

4. 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. 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 Accountant (General).

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 Minister has not approved the nomination by the sponsor/nominator, Ahuja Enterprises Pty Ltd (“the nominator”).

6. The applicants appeared before the Tribunal on 4 April 2024 by telephone, to give evidence and present arguments. The Tribunal received oral evidence from the applicant. Mr Daljeet Nagpal appeared and listened to the process, but did not wish to give evidence. The remaining applicants, as the children of the prinary applicant did not appear.

7. The applicants were represented in relation to the review. The representative did not attend the hearing. The representative had also appeared for the nominator in relation to a review of the refusal of the nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirement for the visa that the nomination has been approved (cl 186.223(2)).

10. The secondary applicants need only meet the secondary criteria as members of the family unit of the primary applicant who satisfies the primary criteria (cl 186.311).

11. The Tribunal has available the Department and Tribunal files for the visa application, and a copy of the Department’s decision as submitted by the applicant with this review application, together with the Act and Regulations.

12. The Tribunal has also had regard to the Tribunal decision on the review of the nomination decision by the nominator[1], and which decision was made on 8 January 2024, together with the oral evidence from the hearing.

    Background

    [1] Tribunal case 2110387

13. The applicant married the secondary applicant, Mr Daljeet Nagpal, in India on 24 April 2005.The couple have twin girls born in India and a son, born in Australia and who are also secondary applicants.

14. All applicants are citizens of the Republic of India. According to Department records, the applicant first came to Australia on 14 November 2009 as a student. In that period, the applicant studied English, then obtained a Masters of Professional Accounting Degree conferred 16 July 2012 from the Central Queensland University.

15. After departing on 13 February 2013, the applicant returned on a Subclass 457 visa on 30 September 2014. She departed briefly on 17 November 2015, and returned again on 1 December 2015.

16. The applicant was contracted to work for the nominator by a written contract of employment made 5 September 2017 to commence subject to approval for a Subclass 186 visa.

17. The applicant made no submissions prior to the hearing and did not submit any documents for this review, other than a copy of the delegate’s visa decision.

    The Hearing

18. The applicant gave evidence. The applicant understood that the nomination for her position had been refused. She understood the that the delegate had found the position was not genuine. The applicant sought to explain her role with the nominator.

19. The Tribunal informed the applicant that this review was not considering the nomination outcome and how she might have performed her role. The Tribunal was considering only whether there was an approved nomination in place and without which, the visa application could not succeed.

20. The applicant explained that she had commenced working for the nominator in 2014 and had been interviewed on site while working for the nominator on her 457 visa in 2016. She said she continued to work for the nominator after her application for the 186 visa from 2018. After COVID, she was reduced to part-time employment with the nominator. She said she has had no information from the nominator about the nomination refusal since sometime in 2023 or what may have happened since.

21. The Tribunal finds that the applicant was aware of the nomination refusal and the reason for that outcome, as she has had the same representative throughout as the representative appearing for the nominator, and had been informed in the visa decision by the delegate that the nomination was refused.

22. The Tribunal informed the applicant that the review of the nomination decision was concluded in the Tribunal on 8 January 2024 and that the Department decision had been affirmed, refusing the nomination. The applicant was therefore not the subject of an approved nomination by the nominator for the role.

23. The Tribunal informed the applicant under s 359AA that the nomination decision affirmed by the Tribunal would be the reason or part of the reason for affirming the visa decision under review.

24. The applicant was invited to comment and indicated that she understood. The applicant responded that she and her family had been living in Australia together since September 2014. Since the nomination refusal and while waiting for the visa outcome, she said she has “not mentally been in a good place”.

25. The Tribunal suggested that she might like to discuss the matter with her representative who was not present and to have an opportunity to respond to the information about the nomination outcome and make any submissions. She agreed to do so and was asked to provide any submissions or information by 10 April 2024 or seek and extension where required.

26. The Tribunal contacted the representative on 9 April 2024 to remind him about responding. The Tribunal officer was informed that submissions due 10 April 2024 were “on track to be sent to the Tribunal on time” and that no further time or extensions were required.

27. The Tribunal has waited until 23 April 2024 to receive any submissions, or a request for an extension of time to provide them or make any necessary inquiries, but has not heard from the applicants or anyone on their behalf since the hearing.

28. The Tribunal has considered whether it should delay the matter any further. The Tribunal notes the applicant has an experienced representative and has received advice. Additional time has been provided without any response or any further approach for more time. The applicants have been aware at least since the visa decision was made on 31 August 2021 that the nomination was refused. On 4 April 2024, the applicant was informed by the Tribunal under s 359AA that the review of the nomination application had been completed and was unsuccessful, which means the decision refusing the nomination stands. The applicant was given time to respond, but has not done so.

29. In those circumstances, the Tribunal considers it should  now complete the decision without any further delay and having had regard to relevant authority as to what might be considered fair and reasonable to the applicants in the exercise of the Tribunal’s discretion.[2]

    [2] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

    Nomination of a position

30. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision.

31. 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.

32. 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.

33. 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.

34. On 8 January 2024, the Tribunal affirmed the Department’s decision not to approve the nomination. This was in circumstances where the nominator had not responded to a Tribunal request for information and had lost the right to appear, and the Tribunal had affirmed the decision without proceeding to a hearing.

35. The Tribunal finds therefore that the applicant is not the subject of a nomination which the Minister has approved.

36. Therefore, cl 186.223 is not met.

    Secondary applicants

37. Clause 186.311 requires the family members as secondary applicants are members of the family unit of a person (the primary applicant) who holds a Subclass 186 visa  granted on the basis of satisfying the primary criteria for the grant of the visa.

38. As the applicant, being the primary applicant, does not satisfy the primary criteria for the grant of the visa, the Tribunal finds that cl 186.311 is not met by the secondary applicants.

    Conclusion

39. 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.

40. 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

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

    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.