Parveen Kumar (Migration)

[2020] AATA 5463

Parveen Kumar (Migration) [2020] AATA 5463 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parveen Kumar

CASE NUMBER:  1818082

HOME AFFAIRS REFERENCE(S):          BCC2017/1996281

MEMBER:Terrence Baxter

DATE:30 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 30 October 2020 at 3:07pm

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

LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, r 1.13; 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 4 June 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook for Dhan Baba Nand Singh Ji Pty Ltd (the nominator).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required him to be the subject of an approved nomination. The delegate found that the nomination lodged by the nominator was refused on 12 April 2018 and that accordingly the applicant did not satisfy cl.186.223(2) and did not meet cl.186.223 as a whole as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 June 2018.

7. The applicant appeared before the Tribunal by audio conference on 11 August 2020 to give evidence and present arguments.

8. The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio conference.

9. The applicant was represented in relation to the review by his registered migration agent. The representative also attended the hearing by audio conference.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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.

13. 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.

14. Records of the Department indicate that the nominator made an application to the Department to have the position of Cook approved, with the applicant as nominee, on 6 June 2017. The nomination application was refused on 12 April 2018 and the nominator sought review of that decision with the Tribunal on 1 May 2018.

15. On 12 October 2020, the Tribunal affirmed the decision not to grant the nomination application.

16. On 15 October 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 12 October 2020, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Dhan Baba Nand Singh Ji Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.186.223(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.186.223(2), which requires the nomination be approved, and affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 29 October 2020.

17. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant responded to the invitation on 29 October 2020 with a submission from the representative. The submission stated that the applicant had not responded or provided any comments with respect to the invitation.

18. Although the applicant has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has taken into account that the applicant has been aware since 4 June 2018 of the reasons for the visa application being refused. The Tribunal has also taken into account that the applicant was advised at the hearing on 11 August 2020 of the consequences of a decision by the Tribunal to affirm the decision by the delegate of the Department to refuse the nomination by the nominator.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to take any further steps to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the relevant criteria under cl.186.233 of Schedule 2 to the Regulations.

20. The Tribunal notes that the application for nomination for the position of Cook has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application.

21. Therefore, cl.186.223 is not met.

22. 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

23. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Terrence Baxter
    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.