PASHAM (Migration)

[2019] AATA 500

PASHAM (Migration) [2019] AATA 500 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shirisha PASHAM
Miss Sahasra Laxmi Reddy PASHAM
Mr Surender Reddy PASHAM

CASE NUMBER:  1802142

HOME AFFAIRS REFERENCE(S):           BCC2016/869558

MEMBER:Alan McMurran

DATE:8 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 08 March 2019 at 12:18pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – no approved nomination – software tester – nomination refusal not subject of an application for review which is pending or which has been determined – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223 (2), rr 1.13A, 1.13B

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 10 January 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 are citizens of India who applied for the visas on 2 March 2016. 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 the Temporary Residence Transition stream, to work in the nominated position of Software Tester.

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 applicant was not the subject of a nomination approved by the Minister.

6. The applicants appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal received oral evidence from the first and third named applicants.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the subject of a nomination approved by the Minister.

   Nomination of a position

9. 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.

10. 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.

11. For the purposes of this review, the Tribunal has had access to the information on the Tribunals’ file and electronic records from the Department’s file, together with the submissions made at hearing by the applicants.

12. The information provided by the applicant includes:

    ·Application lodged 2 March 2016;

    ·letter from Python Technologies dated 25 March 2016

    ·applicant’s resume which shows employment with the nominator as a software tester

    ·employment contract with the nominator dated 7 January 2013 and 15 February 2016

    ·payslips

    ·marriage certificate and daughter’s birth certificate

    ·academic qualifications and transcript from India

    ·travel details for visit to India with employer’s approval and bridging visa details

    ·letter from the Department to the applicant dated 6 December 2017, advising that the visa application could not succeed as the nomination had been refused, and inviting comment

    ·Decision record and notification of refusal to the applicant made 10 January 2018

    ·The Tribunal letter to the applicant dated 17 January 2019 advising that “if the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa.” The letter requests information.

    ·Submissions to the Tribunal in response to the request for information received 29 January 2018 which include:

    i.payslips for period 2014 to 2016;

    ii.contract with nominator dated 5 May 2014 for the position of “software engineer” and letter from employer dated 6 October 2017 confirming employment as a software engineer;

    iii.covering email from the applicant

13. The responses from the applicant did not specifically address the fact the nomination was not approved, and was not the subject of any review. At the hearing, the Tribunal discussed this matter with the applicants. The Tribunal asked the applicant about her employment. She said she had been working at Burwood Road Belmore for the nominator as a software tester, she said since 5 May 2014. The Tribunal notes the letter from the nominator in the Department’s file states the applicant had been employed there since January 2013. The applicant said that her husband had been living in Melbourne, and the Department record confirms the third named applicant arrived in Australia as a student on 26 August 2008. The applicant said that after visiting her husband in 2012 in Melbourne, she sought a position in Australia by searching on Google. She said that she found the nominator online, who offered to sponsor her to come to Australia on a 457 visa to work as a software tester.

14. She said that her 457 visa was to expire in March 2016 which is why the applicant had agreed with her employer that he would seek to nominate her for a 186 visa, for which she would then apply. She said that she wanted the visa to be able to remain in Australia to live and to work and to get residency. She said that she had been here since 2014 and in the last four years had worked consistently. She said that she got some migration advice when lodging the 186 visa, but did not seek any advice in relation to this application for review. She said that when the nomination was refused and she received the letter from the Department informing her, that she approached the nominator for information as to what was happening. She said the employer had told her nothing, and essentially left her in the dark. The employer encouraged her to apply to the Tribunal. She agreed that the Department letter of 6 December 2017 was very clear informing her that the visa application could not be approved. When asked about whether she had sought advice, the applicant said “I don’t have any idea” and did not know what further information she could provide.

15. The third-named respondent also indicated to the Tribunal that both he and his wife have sought information from the nominator who “didn’t say nothing” and left them in a position where they were unaware of what was happening. He said he did not know the nomination refusal was not being reviewed, until he received the Tribunal letter on 19 January 2018.

16. The Tribunal informed both applicants that there was no discretion to overturn the Department’s decision or to remit the matter, where the decision was made in accordance with the law and no nomination had been approved, and there was no review underway or being considered in relation to that decision. The applicant said they understood that situation and had no further comments that they could make to assist the Tribunal in its consideration.

17. The Tribunal finds that the applicant was a person nominated in an application for approval of the 186 visa for the position of software tester, and which nomination application was unsuccessful. The Tribunal is satisfied the nomination refusal is not the subject of an application for review and which is pending or which has been determined.

18. The Tribunal is further satisfied that it would be futile to remit the applicant’s visa application to the Department in circumstances where the Department cannot grant the visa.

19. For these reasons the Tribunal is satisfied that cl.186.223(2) 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.

    Secondary Applicants

21. The Tribunal notes the second and third named applicants, who are the daughter and husband respectively of the applicant.

22. Cl. 186.311 of the regulations requires that each of the named applicants is a member of the family unit of a person (the primary applicant) who holds a subclass 186 visa.

23. For the reasons set out above the Tribunal is satisfied that the applicants are not members of the family unit of the primary applicant, who holds a subclass 186 visa, granted on the basis of having satisfied the primary criteria for the grant of the visa. The primary applicant does not hold a 186 visa, which has not been granted as she has not satisfied the primary criteria (being an approved nomination) for the grant of the visa.

    DECISION

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

    Alan McMurran
    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.