Pardeep Singh (Migration)

[2019] AATA 2160

Pardeep Singh (Migration) [2019] AATA 2160 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pardeep Singh
Mrs Simratpal Kaur
Miss Nimrat Kaur

CASE NUMBER:  1820997

HOME AFFAIRS REFERENCE(S):           BCC2017/2250628

MEMBER:Kate Millar

DATE:10 April 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 10 April 2019 at 5:56pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position of cook – information not provided within prescribed period – no evidence of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, r 1.13, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 17 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 cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was no approved nomination as required.

6.    On 17 January 2019 the Tribunal wrote to the review applicants pursuant to s.359 of the Act, inviting them to provide information to show that the position identified in the visa application was the subject of an approved nomination. The applicant sought an extension of time which was granted. 

1. A further invitation was issued 14 March 2019 to provide information that the position of cook with Brunelli No 2 Pty Ltd is the subject of an approved nomination.  The applicants again sought an extension of time and the extension was granted until 8 April 2019.  

2. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 8 April 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

3. The review applicants have not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether there is an approved nomination for the position to which the application relates.

   Nomination of a position

6. 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.

7. 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.

8. The delegate found that the nomination lodged by Brunelli No 2 Pty Ltd was refused on 8 June 2018.  There is no information before the Tribunal that there is an approved nomination to which the application relates..

9. Therefore, cl.186.223 is not met in respect of the first named applicant. 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.

10. The remaining applicants cannot meet the secondary criteria for the visa as first named applicant does not meet the primary criteria, and the decision in relation to the secondary visa applicants is also affirmed.

    DECISION

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

    Kate Millar
    Senior 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.