Paramdeep Singh (Migration)
[2020] AATA 842
•23 March 2020
Paramdeep Singh (Migration) [2020] AATA 842 (23 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Paramdeep Singh
Mrs Pardeep Kaur
Master Manraj Singh VirdiCASE NUMBER: 1732006
HOME AFFAIRS REFERENCE(S): BCC2017/1417864
MEMBER:De-Anne Kelly
DATE:23 March 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 23 March 2020 at 1:27pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – non-appearance before the Tribunal – application dismissed – medical certificate provided – reinstatement of application – employer nomination review application withdrawn – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223CASES
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 April 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in a nominated position.
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on the 30 October 2017 the employer nomination lodged by Om Mahalaxmii Pty Ltd was refused by a delegate of the Minister.
The applicants were invited on 15 January 2020 to appear before the Tribunal on the 4 February 2020 but did not apply for a postponement and did not attend the hearing. On the 5 February 2020 the Tribunal dismissed the application on the basis of non-appearance at the hearing. The applicants were advised that they could apply for reinstatement of the application by the 19 February 2020 and did so on the 19 February 2020 because
‘Sorry for late reply. I could not come for hearing on 4 February 2020 the reason my wife got surgery, I have attached a medical certificate from doctor as well. I could not leave her alone and she was suffering from stitching pain. Pain was really bad. We have young boy, I had to take care of him as well. It is my humble request to you please give me another chance for hearing, I would be really thankful’.
The Tribunal accepted this explanation and reinstated the application and invited the applicants to a second hearing scheduled for 20 February 2020 that the applicant attended to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicants meet cl.186.223(2) which provides as follows;
(2) The Minister has approved the nomination.
Nomination of a position
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 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.
After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal. The Tribunal found Om Mahalaxmii Pty Ltd withdrew their employer nomination review application and it followed that there was no longer an application to review. Therefore, the employer nomination was not approved.
On the 5 December 2019, the Tribunal, by email, wrote to the applicant under s.359A of the Migration Act inviting him to comment on or respond to the information as follows.
·On 18 April 2017, you applied for a Employer Nomination (Permanent) visa. On your application form, under the heading “Nomination Details”, you referred to an Employer Nomination, lodged by Om Mahalaxmii Pty Ltd.
·On 30 October 2017, the Employer Nomination lodged by Om Mahalaxmii Pty Ltd. was refused by a delegate of the now Minister for Home Affairs. An application for review of this nomination refusal was lodged with the Tribunal.
·On 13 August 2019, the Tribunal accepted a withdrawal if the employer nomination refusal application lodged by Om Mahalaxmii Pty Ltd.
This information is relevant to the review because one of the criteria that must be met
for grant of an Employer Nomination (Permanent) visa, requires that the nomination referred in cl.186.223(1) must be approved.
Since the application for review in regards to the refused Employer Nomination was withdrawn by Om Mahalaxmii Pty Ltd. the decision made by the delegate of the now
Minister for Home Affairs stands. Therefore, the Employer Nomination is not approved.
If we rely on this information in making our decision, we may find that the nomination
was not approved and you will be unable to meet cl.186.223(2). If that criterion is not
met, the visa cannot be granted and we must affirm the decision under review to refuse to grant the visa.The applicant was advised that a response was required by the 19 December 2019 or an extension of time could be requested but the request must be made before this date.
The applicant sent an email requesting an extension of time, which was granted to 10 January 2020. On the 10 January 2020, the applicant responded stating;
I visited multiple lawyers and couldn’t get any satisfactory answer. I would like to explain my situation from my prospective. [sic]
I was employed and sponsored by OM MAHAALAXMII pty Ltd in February 2015. I worked as a retail buyer in this company. I worked continuously for 2 years in my position and I applied for 186 permanent visa in April 2017 which was refused.
The applicant went on to explain that his employer advised they would apply for a review of the decision and he would ’definiltely get your visa’. He was not aware the employer had withdrawn his nomination application review. The applicant found himself innocent and he had followed all the visa obligations and he and his wife were tax payers in Australia.
The Tribunal considered this a response to the invitation and invited the applicant to the hearing scheduled for the 4 February and when he did not attend that hearing to the subsequent hearing on the 20 February 2020.
At the hearing, the applicant explained his work history with the employer and stated again that he had met all his obligations while in Australia. The Tribunal advised that it had now been over two years since the applicant had lodged his application for review and the Tribunal needed in a fair and just manner to proceed to a timely decision on the case. There was a brief discussion regarding applying for a further employer nomination from either the original employer Om Mahaalaxmii Pty Ltd or another employer and seeking to link that nomination to the visa application under review.
The Tribunal relies on cl.186.223(1) being the original employer nomination and that repeated nominations either from the original employer or a new employer would not satisfy cl.186.223(1). There was case law to support the argument that the approved nomination had to be the one referred to in cl.186.223(1). The Tribunal considered Justice Mortimer’s finding in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [89]-[90].
‘The structure of reg.5.19 contemplates (whether for sub-reg. (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the mattes on the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits, review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 265 ALR at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant…The scheme intends it to be a “one off” process, so that the visa application is considered against a specific employer nomination and specific approval of that nomination by the Minister (or his delegate)’
The Tribunal advised the applicant that he could have a further 14 days to seek professional migration advice and if required he could request an extension of time. The applicant did not request an adjournment at the hearing.
To date there has been no further communications or submissions from the applicant.
The Tribunal is obliged to make a timely decision in this matter.
Since the Tribunal has found there is no approved nomination to satisfy cl 186.223(2), the visa applicant, Mr Paramdeep Singh therefore does not meet cl 186.223(2).
Therefore, cl.186.223 is not met.
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.
DECISION
Mrs Pardeep Kaur and Master Manraj Singh Virdi 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. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary 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 secondary applicants made a combined application with the primary applicant and applied as the spouse 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 Pardeep Kaur and Master Manraj Singh Virdi a subclass 186 visa.
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
De-Anne Kelly
MemberATTACHMENT 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Appeal
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