PANNU (Migration)

[2019] AATA 2942

PANNU (Migration) [2019] AATA 2942 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ROBINDEEP SINGH PANNU
Mrs KAMALJIT KAUR

CASE NUMBER:  1823810

HOME AFFAIRS REFERENCE(S):           BCC2017/2249576

MEMBER:R. Skaros

DATE:28 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2019 at 2:36pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – making efforts to find another employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 31 July 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 26 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 Café or Restaurant Manager with Fig & Olive Pty Ltd.

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 nomination made by Fig & Olive Pty Ltd was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 2 July 2018.

7. On 6 December 2018, the Tribunal wrote to the applicants noting that the nomination for the position had not been approved and requesting the applicant to provide information as to whether the relevant nomination has been approved or whether there is a pending application for review of the decision not to approve the nomination. The Tribunal did not receive a response.

8. On 25 February 2019, the Tribunal wrote to the applicants and invited them to appear before it by telephone at a hearing scheduled 12 March 2019. The applicants sought a postponement of the hearing as they wished to travel overseas to be with family members who are unwell. Medical certificates and an itinerary indicating the dates of travel were provided. The Tribunal considered the information but decided not to postpone the hearing. In refusing to postpone the hearing, the Tribunal informed the applicants that it could conduct the hearing by telephone from overseas and would also consider any written submissions up to the date of the hearing. 

9. The day before the hearing, the applicants’ representative informed the Tribunal that the applicant will attend the hearing by teleconference and that he could be contacted on his mobile. The applicant appeared before the Tribunal by telephone on 12 March 2019 to give evidence and present arguments.

10. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination of the position has been approved.

    Nomination of a position

13. 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. In addition, this criterion also requires that the nomination has been approved.

14. The applicant applied for the visa on the basis of an employer nomination made by Fig & Olive Pty Ltd in which he was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the Department refused to approve the associated nomination on 2 July 2018.

15. At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that he believed he had met the criteria because he worked there for two years and that the business’ owner, due to personal circumstances, had to close down the business. The applicant stated that it was not his fault that the business closed down and that it was due to the circumstances of the nominator.

16. The Tribunal explained to the applicant that while he may have worked for the employer for two years, the issue relates to whether the nomination has been approved. The applicant again stated that the law requires him to work for the nominator for two years and that he has done this. He then stated that the nominator informed him that they would open a new business but this did not eventuate. He stated that the decision to refuse him a visa was unfair. The Tribunal explained to the applicant that there was no provision in the legislation to take into account any extenuating circumstances and that it must make its decision in accordance with the applicable legislative provisions.

17. The applicant stated that he is in the process of finding a new employer and has taken advice from a migration agent and is in the process of rectifying his situation as soon as possible. The applicant asked the Tribunal to delay making its decision until he makes another application. The Tribunal informed the applicant that it was not minded to delay making its decision because there would be no merit in doing so as he could not rely on any other application or nomination to satisfy the requirements of the visa that is the subject of this review.

18. The Tribunal has had regard to the evidence before it and acknowledges that the refusal of the nomination was due to the circumstances of the nominator and not the applicant. The Tribunal acknowledges that the applicant is currently making efforts to find another employer, however, as discussed with the applicant at the hearing, even if a new nomination could be made, this would not assist the applicant as it could not be relied on to satisfy the requirement in cl.186.223(2). In the circumstances, the Tribunal has decided not to delay making its decision and proceeds on the information before it.

19. The evidence before the Tribunal indicates that the relevant nomination for the position lodged by Olive & Fig Pty Ltd, in relation to which the applicant made the required declaration in the visa application, was refused. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that the decision to refuse the relevant nomination was set aside. In the circumstances, the applicant does not meet the requirements in cl.186.223(2). Therefore, cl.186.223 is not met.

20. 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.

21. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    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.