Patel (Migration)

[2024] AATA 3464

Patel (Migration) [2024] AATA 3464 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Urvish Dineshkumar Patel
Mrs Dipeekaben Jitendrabhai Patel

REPRESENTATIVE:  Mrs Sun Mi Hislop (MARN: 1383279)

CASE NUMBER:  2109921

HOME AFFAIRS REFERENCE(S):          BCC2019/6843999

MEMBER:Peter Emmerton

DATE:17 September 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 17 September 2024 at 12:15pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Sales and Marketing Manager – no approved nomination – nominator placed into liquidation – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 28 July 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 December 2019. 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 (Cth) (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 Sales and Marketing Manager, ANZSCO 131112, Skill level 1.

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 nomination was not approved.

6. The applicants appeared before the Tribunal on 17 September 2024 to give evidence and present arguments.

7. The applicants were not represented in relation to the review hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination is approved.

   Nomination of a position

10. 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.

11. 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 reg 1.13A and reg 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.

12. On 24 December 2019 an application was lodged for a residence visa under the Employer Nomination (Class EN 186) (Permanent) Temporary Residence Transition Scheme, in favour of the visa applicant. On 28 July 2021 the application was refused.

13. On 4 August 2021 the visa applicant applied to the Administrative Appeals Tribunal to review the decision.

14. The nominator appealed the delegate’s decision on 15 August 2021 and sought review before the Administrative Appeals Tribunal.

15. The nominator was placed into liquidation prior to the appeal being heard. The Tribunal was subsequently unable to elicit a response from the liquidator. On 20 June 2024 the Tribunal made a decision affirming the delegate’s decision.

16. The visa applicant continued their appeal before the Administrative Appeals Tribunal and on 17 September 2024, during the hearing, the visa applicant agreed that as was indicated by the Departmental records, there is not an approved nomination associated with their visa application. The applicant went on to say that he was in contact with the previous nominator who was hoping to start a new business and if so ,would reemploy the applicant in the new business. The Tribunal advised the applicant to speak with his representative and enquire about an appropriate course of action whilst being cognisant of the timelines determined by the Department post the visa refusal affirmation by the AAT.

17. The Tribunal therefore finds the visa applicant cannot satisfy the requirements specified in cl.186.223(2) as there is no approved nomination linked to the visas under review.

18. Therefore, cl 186.223 is not met.

19. 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

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

    Peter Emmerton
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.