NIJJER (Migration)

[2020] AATA 4047

NIJJER (Migration) [2020] AATA 4047 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KARAMJIT SINGH NIJJER
Mrs RAJWANT KAUR
Miss HARSIRAT KAUR NIJJER

CASE NUMBER:  1807686

HOME AFFAIRS REFERENCE(S):          BCC2017/2294204

MEMBER:De-Anne Kelly

DATE:1 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 September 2020 at 10:59am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – facilities manager – nomination refused–not the subject of an approved nomination – members of the family unit of the first named applicant –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 375A
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.311

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 9 March 2018 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 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of facilities manager.

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 employer nomination application by S.E. & Sons Pty Ltd was refused by a delegate of the Minister on the 6 February 2018 being the application referred to in cl.186.223(1).

6. The applicants appeared before the Tribunal on 22 July 2020 to give evidence and present arguments.

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

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 cl.186.223(2) which provides as follows;

   (2) The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision.

13. At the hearing the Tribunal under s359AA of the Migration Act 1958 gave the applicant particular information that there had been a s375A certificate from an anonymous source alleging the employer engaged in payment for visa sponsorship. The Tribunal advised that it gave no weight to anonymous allegations in reaching a decision on the employer nomination refusal review and it would not give weight to them in reaching a decision on the visa application refusal review.

14. The applicant gave an overview of his duties at the hearing. He did not request an adjournment.

15. On 17 August 2020, under s.359A of the Act the Tribunal sent the applicants an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal on the 12 August 2020. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, it may find that the position specified in their visa application is not the subject of an approved nomination. This would mean that they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. They were to respond by the 31 August 2020, or they could request an extension of time, but the request must be received by the 31 August 2020.

16. There was no request for an extension of time and no further information or submissions were made by the applicant.

17. Since the Tribunal has affirmed the employer nomination decision under review there is no approved employer nomination to satisfy cl.186.223(2) and the applicant, Mr KARAMJIT SINGH NIJJER does not meet cl.186.223(2).

18. Therefore, cl.186.223 is not met.

19. 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.

20. Mrs RAJWANT KAUR and Miss HARSIRAT KAUR NIJJER were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. On 9 March 2018, a delegate of the Minister refused the visa application of the applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) is a member 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; and

    (b) made a combined application with the primary applicant.

    The applicants made a combined application with the primary applicant and applied as the wife and child and therefore members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicants therefore do not satisfy cl.186.311.

    The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant Mrs RAJWANT KAUR and Miss HARSIRAT KAUR NIJJER a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.