PATEL (Migration)

[2020] AATA 3319

PATEL (Migration) [2020] AATA 3319 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VIPULKUMAR KANTILAL PATEL
Mrs PINKIBEN VIPULKUMAR PATEL
Ms HEER VIPULKUMAR PATEL

CASE NUMBER:  1802411

HOME AFFAIRS REFERENCE(S):          BCC2017/2248462

MEMBER:Karen McNamara

DATE:12 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 August 2020 at 9:27am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related nomination of position refused and refusal affirmed on review – members of family unit – child’s health and education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 (the delegate) on 11 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 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 Mr Vipulkumar Kantilal Patel (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Transport Company Manager (ANZSCO 149413).

5. The delegate’s decision record dated 11 January 2018, states that on 7 December 2017 the nomination lodged by RGC Investments Group Pty Ltd was refused by a delegate of the Minister for Immigration and Border Protection.  As the nomination application had been refused, the delegate found that the applicant did not meet cl.186.223(2) and as a result, the applicant did not meet cl.186.223.

6. The delegate also found that the second named applicant Mrs Pinkiben Vipulkumar Patel and the third named applicant Ms Heer Vipulkumar Patel could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants applied to the Tribunal on 31 January 2018 for review of the delegate’s decision.

8. On the 3 July 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by RGC Investments Group Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

9. On 6 July 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made RGC Investments Group Pty Ltd (AAT Case 1731824), which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

10. On 20 July 2020 the applicants by way of submission advised the Tribunal as follows;

    ‘ Dear the Member,

    I, VIPULKUMAR KANTILAL PATEL, am writing in relation to the letter you sent us on 6 July 2020 – Invitation to Comment on Respond.

    My ENS (186 visa) was lodged on 26 Jun 2017 but it was refused as the related nomination was unsuccessful. Accordingly, the AAT application for my visa was lodged on 31 Jan 2018 and received the acknowledgement letter on 1 Feb 2018.

    Recently we received the unfavourable decision for Nomination from AAT and I received this intonation to comment request. I wish to appeal that:

    •    Since my 457 visa was granted on 19 Feb 2015, I have complied my visa conditions.

    •    I met the requirement for the ENS visa under Temporary Residence Transition stream.

    •    At the time of lodgement at the Department and AAT, the Business was actively operating and was not under External Administration; and I understand the Business trying to get back to the operation.

    •    I have been in Australia since 2013 and my daughter, Heer Vipulkumar PATEL, spent most of her life here in Australia. Heer is now Grade 3 and can only speak English so it will be so harsh for her settling in India.

    Further to above points, under this COVID-19 situation, it will be very hard for me and our family going back to our home country…..’

11. On 11 August 2020, Mr Vipulkumar Kantilal Patel appeared before the Tribunal via telephone, to give evidence and present arguments on behalf of the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages; however, Mr Patel told the Tribunal that they did not require the services of the interpreter. The interpreter remained connected to the hearing in the event interpretation services were required. The applicants did not request the interpreter’s services during the hearing.

12. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. 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 telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

16. 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.

17. 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.

18. At the hearing of 11 August 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

19. The applicant told the Tribunal that his daughter has been living in Australia for 7 1/2 years and that since moving to Australia her health has improved. His daughter has a future here in Australia, for her health and education and requested that the Tribunal take this into consideration when making its decision.

20. The Tribunal has considered Mr Patel’s evidence and whilst it has enormous sympathy for the applicants circumstances the Tribunal finds that there is no evidence before it to support that the applicants’ application is subject to a nomination that has been approved and has not subsequently been withdrawn.

21. On the evidence before it, The Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations.

22. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

23. There is no evidence before the Tribunal to indicate that the second named and third named applicants meet the primary requirements for grant of the visa.

24. In relation to the second named applicant Mrs Pinkiben Vipulkumar Patel and the third named applicant Ms Heer Vipulkumar Patel, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant 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. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicants, Mrs Pinkiben Vipulkumar Patel and Ms Heer Vipulkumar Patel as a member of Mr Vipulkumar Kantilal Patel’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

25. 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

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

    Karen McNamara
    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.