Nand (Migration)

[2020] AATA 3039

Nand (Migration) [2020] AATA 3039 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vikash Nand
Mrs Rajeshni Pratap
Miss Taanvi Prisha Nand

CASE NUMBER:  1924664

HOME AFFAIRS REFERENCE(S):          BCC2018/5839757

MEMBER:Karen Synon

DATE:7 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2020 at 12:17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – skills assessment – Electrician (General) – no skills assessment from relevant authority – not an exempt person – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 186.234

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 22 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 December 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 (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 Direct Entry stream, to work in the nominated position of ‘Electrician (General)’

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because, at the time of application, an assessing authority had not assessed the applicant’s skills as suitable for the occupation.

6. The applicants applied for review of the primary decision on 3 September 2019 and provided a copy of the Department’s decision.

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

8. On 21 April 2020 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the first named applicant to provide the following information in writing:

   oYou hold a Subclass 444 – Special Category visa or Subclass 461  New Zealand Citizen Family Relationship (Temporary) visa and you were working in your nominated occupation for your nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years immediately before applying for your Subclass 186 visa, or

   oYou are a researcher, scientist or technical specialist at the ANZSCO skill level one or two, and you are nominated by an Australian scientific government agency; or

   oYou are nominated by an Australian university to be employed at an Academic Level of A, B, C, D or E, in the position of University Lecturer (ANZSCO 242111) or Faculty Head ( ANZSCO: 134411).

   OR

   Or information that demonstrates that:

   oa specified assessment authority, being Trades Recognition Australia (‘TRA’) had assessed your skills as suitable for the occupation on or before the date of lodging the visa application; and

   oYou have been employed in the occupation for at least 3 years on a full time basis at the level of skills required for the occupation.

9. The s.359(2) invitation to provide information was sent to the applicant’s authorised recipient and representative via email on 21 April 2020.  In this letter the applicants were advised that if we did not receive the invited information in writing by 5 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicants did not provide the information within the prescribed period and no extension of time in which to respond was requested.

11. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicants via their authorised recipient by email in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information.

12. In making this decision the Tribunal notes that the visa was refused on 22 August 2019 and the review application was lodged on 3 September 2019 and the applicants have not provided any substantive submissions to the Tribunal including at the time the application for review was lodged.

13. Further, the Tribunal notes the primary decision records that there was also no response from the applicant when he was requested to provide a copy of his positive skills assessment on 8 July 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is cl.186.234.

    Skills assessment and prior employment

16. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing as an exempt person, or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

17. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

18. For the skills assessment, the relevant assessing authorities for each occupation are specified in a registered instrument.  For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa.  For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

19. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

20. On the evidence before the Tribunal, the applicant nominated the occupation of ‘Electrician General)’ which is a specified skilled occupation.  For that occupation, the relevant assessing authority specified in IMMI 18/046 is Trades Recognition Australia (TRA).

21. The visa application records that the applicant answered ‘no’ to the question ‘does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?’.

22. There is no evidence before the Tribunal which suggests that the applicant is in any class of exempt persons specified in the relevant Legislative Instrument and as such he does not satisfy cl.186.234(3).

23. The Tribunal notes that the applicant declared in his visa application that he had not applied for a skills assessment for his nominated occupation.  Given the opportunity to provide this to both the Department last year and the Tribunal in response to its s.359(2) invitation, he has failed to do so.  As the applicant did not provide evidence of a successful skills assessment at the time of application, he does not satisfy cl.186.234(2).

24. As the applicant does not satisfy cl.186.234(2) or (3) he does not satisfy cl.186.234 in its entirety.

25. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

26. In relation to the secondary applicants, the Tribunal notes that they applied on the basis of being members of the first named applicant's family unit.  As the Tribunal has found that the first named applicant does not meet cl.186.234, the secondary applicants are unable to meet the requirements of 186.311(a), which requires that they be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

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

    Karen Synon
    Member