Panchal (Migration)

[2019] AATA 3032

Panchal (Migration) [2019] AATA 3032 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pannaben Kamleshkumar Panchal
Mr Rudra Kamleshkumar Panchal
Miss Vaidehi Kamleshkumar Panchal

CASE NUMBER:  1707415

DIBP REFERENCE(S):  BCC2016/2211925

MEMBER:Ian Berry

DATE:29 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 May 2019 at 2:55pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – nomination refused – applicant not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 Immigration on 17 March 2017 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (‘applicant’) applied for the visa on 29 June 2016. The delegate refused to grant the visa because the applicant did to not to have a nomination which had been approved: cl.186.233(3).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the applicant is the subject of an approved nomination.

5. On 1 February 2017, the applicant’s nominator AVP Solutions Pty Ltd had its nomination application refused by the immigration Department’s delegate.  The ground of refusal was that is the Minister had not approved the nomination:186.233(3).

6. The nominator requested the delegate’s decision be reviewed. The Tribunal proceeded to allocate a hearing date of 4 April 2019 at 10am. The applicant was advised of that hearing date on 8 March 2019.

7. A request was made for an adjournment which the Tribunal granted.

8. The Tribunal again set the application for hearing, allocating 7 May 2019 at 10am. The applicant was advised of the hearing, on 2 April 2019. The applicant did not attend the hearing.

9. On 13 May 2019, the Tribunal wrote to the applicant pursuant to s.359A. The information placed before the applicant is fully set out below:

   ‘Information before the Tribunal indicates that you do not have an approved business nomination.  The application for approval of a business nomination made by AVP Solutions Pty Ltd was refused by the Department of Immigration and Border Protection on 1 February 2017.  An application for review of that decision by the Tribunal was withdrawn on 7 May 2019.

10. The letter of 13 May 2019, invited the applicant to provide information or comments concerning the applicant’s nominator withdrawing the nomination application, as such information if relied upon by the Tribunal would be the reason, or part of the reason, to affirm the delegate’s decision to refuse the visa application.  Without a nomination application approval, the applicant could not succeed in her visa application.

11. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments not provided in writing by 27 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

12. The applicant provided the information or comments on 23 May 2019.  The applicant’s response is detailed as follows:

    Dear [Tribunal case officer]

    I hope you are well.

    I writing this email regarding aforementioned AAT Case.

    Actually Kamleshkumar lodged another AAT Review  Application(Nomination (Case Number: 1906382)& Visa (Case Number 1909048)) under another employer.

    I would like to ask you to link Case Number 1707415 with Case Number: 1906382 and Case Number: 1909048.

    If you need more information, please feel free to contact me at undersigned.

    Look forward to an early and prompt revertal at the soonest.  Thank you

13. The applicant did not provide the basis for the ability of the tribunal to link cases as the applicant’s migration agent has requested.

14. The applicant has not provided any information connected with the applicant having an approval of a nomination in which she is identified.

15. On 24 May 2019, the Tribunal wrote to this migration agent indicating that for him to be able to discuss the applicant’s matter he must be appointed as an authorised party.  The Tribunal continued by saying that he is not an authorised person.

16. On 27 May 2019, Kamlesh Panchal emailed the Tribunal the details of that email is set out hereunder.  It appears that this email is from the applicant and she states:

    Dear [caseworkers name withheld]

    I hope you are well.

    I writing this email regarding aforementioned AAT Case.

    I undersigned, kamleshkumar prahladbhai Panchal lodged another AAT Review Application (Nomination (Case Number: 1906382) & Visa (Case Number: 1909048)) under another employer.  I would like to ask you to link Case Number 1707415 with Case Number: 1906382 and Case Number: 1909048.

    If you need more information, please feel free to contact me at undersigned.

    Look forward to an early and prompt revertal at the soonest.  Thank you.

    Thanking you

    Kamlesh Panchal

17. The applicants letter repeats the words of the migration agent.  Again, there is not any evidence of the applicant having a nomination approval.  There is not any basis upon which this Tribunal can link this matter to any other case.  The Tribunal finds that it does not have jurisdiction to undertake such a procedure.

18. The Tribunal finds that the applicant has not met cl.186.233(3) of the Regulations.

19. Finally, 186.311 requires inter alia that an applicant is 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 that Visa.  As neither the applicant, nor any family member, has satisfied the primary criteria for the grant of the Subclass 186 visa, the Tribunal not satisfied that cl.186.311 has been met.

    DECISION

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

    Ian Berry
    Member