Panchal (Migration)

[2020] AATA 5552

Panchal (Migration) [2020] AATA 5552 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Navdeepkumar Panchal
Mrs Darshnaben Panchal
Master Krishiv Panchal

CASE NUMBER:  1809275

DIBP REFERENCE(S):  BCC2017/1294717

MEMBER:Antonio Dronjic

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 October 2020 at 2:10 pm (VIC time)

DATE OF WRITTEN RECORD:                31 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 31 October 2020 at 12:51pm

CATCHWORDS

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

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 14 March 2018 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. The applicants applied to the Tribunal on 4 April 2018 and provided a copy of the primary decision record with the application.

3. On 27 August 2020, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicants’ comment on or response to the following information:

   ·Your visa application was refused by the Department on 14 March 2018, because the nomination mentioned in cl.186.223 in respect of the first named applicant has not been approved.

   ·The decision not to approve the nomination by Mr Bhanupradeep Dandala, trading as Dan IC Design and Synthesist was made by the Department on 8 February 2018.

   ·Mr Bhanupradeep Dandala applied for review of this decision at this Tribunal on 27 February 2018.

   ·On 19 August 2020, the Tribunal affirmed the Department’s decision not to approve the nomination made by Mr Bhanupradeep Dandala.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 186 visa. This is because one of the criteria contained within subclass 186, namely clause 186.223 requires that the nomination was approved by the Minister and that nomination has not subsequently been withdrawn.

   This information is relevant to the second and third named review applicants because of the requirements of cl.186.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (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 they made a combined application with the primary applicant.

   Accordingly, if the first named review applicant is not a holder of a subclass 186 visa, the secondary applicants will not be able to meet cl.186.311.

4. The applicants responded to the Tribunal’s invitation on 8 September 2020, submitting that the Tribunal decision related to the nomination application was wrong and that the employer did not have sufficient time to provide the requested documents.

5. On 10 September 2020, the Tribunal wrote to the applicants advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 1 October 2020.

6. The first named applicant attended the Tribunal hearing and, in his evidence, confirmed that the appointment mentioned in subclass 186.223 lodged by Mr Bhanupradeep Dandalaon his behalf has not been approved at the time of Tribunal decision.

7. At the hearing on 1 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

8. Based on the evidence before it, the Tribunal finds that the appointment mentioned in subclause 186.223 lodged by Mr Bhanupradeep Dandala on behalf of the first named applicant, has not been approved at the time of the Tribunal’s decision. As a result, the Tribunal finds that the first named applicant does not meet the requirements of clause 186.223 at the time of its decision.

9. The first named 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.

10. The Tribunal must also affirm the decisions not to grant the second and third named applicants a subclass 186 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria for this subclass, or any other subclass within Class EN, in their own right.

    DECISION

11. The Tribunal affirms the decisions under review.

    Antonio Dronjic
    Member