Peiris (Migration)

[2021] AATA 5596

Peiris (Migration) [2021] AATA 5596 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Halpawattage Nuwanthi Chamika Peiris
Mr Baminahannadige Vasanthasiri Priyanga Peiris
Miss Baminahannadige Pamadhi Thewanga Peiris

CASE NUMBER:  1920722

HOME AFFAIRS REFERENCE(S):          BCC2017/4439800

MEMBER:Mary Sheargold

DATE:20 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2021 at 5:59pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Hairdresser – no approved nomination – nomination review application withdrawn – new employer willing to sponsor the applicant – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cls 186.223, 186.311

CASES

Singh v MIBP [2017] FCAFC 105     

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 17 July 2019 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 November 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 (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 Direct Entry stream, to work in the nominated position of Hairdresser, ANZSCO 391111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations because the nomination application made by The Beauty Studio Company Pty Ltd for the position of Hairdresser was not approved.

6. The first named applicant appeared before the Tribunal by telephone on 16 September 2021 to give evidence and present arguments.  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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments.

7. The applicants were represented in relation to the review.

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 there is an approved nomination.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 20 August 2021, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Hairdresser made by The Beauty Studio Company Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that it had recently withdrawn its application to have that decision reviewed by the Tribunal.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 3 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. On 31 August 2021, the first named applicant responded to the Tribunal’s letter.  She enclosed detailed submissions in support of her application and provided evidence in the form of approvals for her previous Subclass 457 visa, and PAYG statements and bank statements showing salary payments were made to her by her nominating sponsor.  In summary, the applicants argue that the only reason the first named applicant ceased working for the nominating sponsor, and the reason that the sponsor withdrew the review application with the Tribunal, is that the Covid-19 pandemic adversely affected the sponsor’s business to the point that the first named applicant’s employment was no longer viable.

15. The first named applicant argues that she is fully qualified and experienced in her chosen profession and notes she has a new employer willing to sponsor her for another visa should they be given the chance to apply.  At the hearing, the first named applicant conceded she understood that this application could not succeed without an approved nomination from The Beauty Studio Company Pty Ltd.  The Tribunal notes that the first named applicant has already lived in Australia for 13 years, where she completed 3 years of study qualifying as a hairdresser followed by a decade of work experience as a hairdresser in Melbourne.  The Tribunal expressed its sympathy for the applicants given that the circumstances leading to the withdrawal of the nomination application review were beyond their control

16. The Tribunal notes that the nominator’s nomination application was refused by the Department. As the nomination application for the position to which the first named applicant’s Subclass 186 visa application relates has not been approved, the Tribunal finds that the first named applicant does not meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations.

17. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, in relation to the mirroring provision in cl.187.233, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

18. In this matter, the Tribunal notes that because there is no approved nomination for the first named applicant’s visa application, she cannot overcome her current inability to meet cl.186.233(3) in relation to her application.  The nomination by The Beauty Studio Company Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl 186.233(3) is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

21. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant Subclass 186 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    Member

    
    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.