Patel (Migration)

[2019] AATA 3222

Patel (Migration) [2019] AATA 3222 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaurangkumar Mansukbhai Patel
Mrs Dimpal Gaurangkumar Patel

CASE NUMBER:  1717477

HOME AFFAIRS REFERENCE(S):          BCC2016/3365504

MEMBER:Phoebe Dunn

DATE:6 August 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 06 August 2019 at 9:58am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service 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 Immigration and Border Protection on 27 July 2017 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 11 October 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 Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

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 of the position in respect of the applicant lodged by V Brahmbhatt & N Rebello, was refused by a delegate of the Minister for Immigration and Border Protection on 16 June 2017, and as such there was no approved nomination.

6. On 6 July 2017, the nominator sought a review of that decision.  On 9 May 2019, the Tribunal affirmed the decision not to approve the nomination.

7. On 10 May 2019 the Tribunal wrote to the applicants under s.359A of the Migration Act inviting the applicants to comment on or respond to information that the Tribunal considered would, subject to any comments or response, be the reason, or part of the reason for affirming the decisions under review. The particulars of the information was as follows:

   “The application for approval of the nominated position made by V Brahmbhatt & N Rebello was refused by a delegate off the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the AAT.  This means that the nominator’s application for the nominated position has not been approved. This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination.  This would mean that you do not satisfy a requirement for the grant of a visa and that we must affirm the decision that is under review.”

   The applicants were invited to give comments or respond to the above information in writing by 24 May 2019.

8. On 15 May 2019 the applicants responded to the invitation to give comments or respond, acknowledging that there was no valid nomination, and requesting that the Tribunal provide more time to provide a valid nomination or, alternatively, that the Tribunal refer the matter for Ministerial Intervention under s. 351 of the Act.  The applicants also requested an opportunity to be heard.  On 17 May 2019, the Tribunal invited the applicants to attend a hearing, set down for 14 June 2019.

9. The applicants appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The applicants were given until 28 June 2019 to provide further submissions.  Further written submissions were subsequently received by the Tribunal on 12 July 2019. In written correspondence and in oral evidence at the hearing the applicants have made the following submissions (in summary):

   a.The applicants were victims of circumstances and had no control over the activities of the nominating company

   b.The first named applicant meets all the requirements for a subclass 186 visa, and was shocked and surprised to hear of the nomination refusal as he had worked for the nominating company for over three years

   c.The refusal of the visa has affected the first named applicant’s ability to make further visa applications while in Australia, which also impacts on the second named applicant

   d.The applicants have never breached any of their visa conditions while in Australia and have contributed to the Australian economy through paid skilled employment and to their local community by volunteering with local community organisations such as the International Swaminarayan Satang Organisation Victoria, the Swaminarayan Temple and Shree Saurashtra Patel Samaj Victoria.  References from these organisations attesting to this community work have also been provided

   e.The first named applicant is likely to be nominated by another large organisation shortly and he is awaiting paperwork for this nomination and requested a ‘few weeks’ to provide proof of another successful nomination

   f.That the Tribunal refers the matter to the Minister for intervention under s.351 of the Act, on the basis that the circumstances were out of the control of the applicants and applicants are undergoing significant stress, which may impact on their mental health.

10. The applicants were represented in relation to the review by their registered migration agent, Mr Ketan Juvekar.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

13. 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.

14. 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.

15. The nomination application of the first named applicant’s sponsor was refused by the Department and that decision has been affirmed by the Tribunal on review.  Accordingly, at the time of this decision the first named applicant is not the subject of an approved nomination.  Therefore, cl.186.223(2) is not met.

16. The Tribunal has considered the written submissions received on 15 May 2019 and on 12 July 2019, as well as the oral evidence at the hearing.  In relation to the matters set out in paragraphs 9(a) to (d) above, the Tribunal notes that these are not factors that the Tribunal can take into consideration when determining whether there is a valid nomination under cl.186.223(2). 

17. In relation to the request for a delay on which to make a decision on the basis that the first named applicant is likely to be nominated by another organisation shortly, the Tribunal notes that on current authority it is a requirement under cl.186.223 that the position to which the visa application relates is the position in relation to which the required declaration is made under paragraph 1114B(3)(d) of Schedule 1, and this requirement cannot be satisfied by a later nomination made by a different employer as this new nomination would not be the one to which the Schedule 1 declaration was made[1].  As such the Tribunal considers that any such delay would be futile.

    [1] Hasan v MIBP [2016] FCCA 1049

18. Notwithstanding the above, the Tribunal wrote to the applicants on 25 July 2019 granting until 2 August 2019 to make further submissions on this matter, after which time the Tribunal will be making a decision on the review.  As at the date of this decision, the Tribunal has not received any further submissions from the applicants.

19. The Tribunal is not minded to delay making a decision indefinitely.

20. The Tribunal has also considered the request for the Tribunal to refer the matter to the Minister for the possible exercise of the Minister’s discretion under s.351 of the Act. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister.

21. I note that the applicants are not precluded from making a request for ministerial intervention upon receipt of this merits review decision.

22. The first named 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.

23. The only basis of the application of the second named applicant is that they are a member of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the application of the second named applicant must also be affirmed because she does not satisfy cl.186.311.

    DECISION

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

    Phoebe Dunn
    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.