Patel (Migration)

[2019] AATA 4134

Patel (Migration) [2019] AATA 4134 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mehulkumar Patel (the applicant)
Mrs Heenalben Patel (second applicant)
Master Sahajanand Patel (third applicant)

CASE NUMBER:  1809500

HOME AFFAIRS REFERENCE(S):           BCC2015/3736882

MEMBER:J. Bell

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 12:05pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 20 March 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 7 December 2015. 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 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 Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application lodged by the nominator, Zoom Hand Carwash and Café Pty Ltd, was refused by the Department of Home Affairs and therefore the applicant was not the subject of an approved nomination by his employer. The delegate refused to grant Subclass 186 visas to the second and third named applicants (the applicant’s wife and son) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a Subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal reviewed the Department’s decision to refuse the nomination and affirmed the Department’s decision on 24 July 2019. On 25 July 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment or respond to information which formed the reasons for the Tribunal affirming the Department’s decision to refuse the nomination by 8 August 2019.

7. The applicant responded to the letter pursuant to s.359A of the Act within the prescribed period on 7 August 2019 stating that he requested a hearing. 

8. The applicant attended a hearing on 9 September 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is that the delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application lodged by the nominator, Zoom Hand Carwash and Café Pty Ltd, was refused by the Department of Home Affairs and therefore the applicant was not the subject of an approved nomination by his employer. The delegate refused to grant Subclass 186 visas to the second and third named applicants (the applicant’s wife and son) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a Subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

11. The Tribunal reviewed the Department’s decision to refuse the nomination and affirmed the Department’s decision on 24 July 2019. On 25 July 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment or respond to information which forms the reasons for the Tribunal affirming the Department’s decision by 8 August 2019.

12. The applicant responded to the letter pursuant to s.359A of the Act within the prescribed period on 7 August 2019 stating that he requested a hearing.

13. A hearing was held on 9 September 2019 which was attended by the applicant.

14. 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.

15. 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.

16. The applicant does not satisfy the criterion as the nomination was not approved. Therefore the applicant does not meet cl.186.223(2) and thus cannot meet cl.186.223 as a whole.

17. Therefore, cl.186.223 is not met.

18. 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.

19. With respect to the second applicant and third applicant, pursuant to clause 186.311 they are not a member of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore clause 186.311 is not satisfied and the criteria for the grant of an Employer Nomination Scheme (Subclass 186) visa are not satisfied. Furthermore, the second and third applicants do not meet the primary criteria in their own right.

    DECISION

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

    Jane Bell
    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.