Prajapati (Migration)

[2023] AATA 651

Prajapati (Migration) [2023] AATA 651 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manishkumar Joitaram Prajapati
Mrs Ranjanben Manishkumar Prajapati
Master Aryan Manishkumar Prajapati

REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)

CASE NUMBER:  1931249

HOME AFFAIRS REFERENCE(S):          BCC2019/2351311

MEMBER:Sheridan Lee

DATE:16 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2023 at 11:14am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – gardener – subject of approved position nomination – refusal of related nomination application affirmed – intention to apply for judicial review – request for delay of visa review not granted – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, 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 on 22 October 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 2 May 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.

4. 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. 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 Gardener.

5. The delegate refused to grant the visas because the applicant did not meet cl 186,223(2) of Schedule 2 to the Regulations, which requires that the visa application is the subject of an approved nomination.

6. Mr Manishkumar Joitaram Prajapati appeared before the Tribunal on 20 December 2022 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s employer, Mr Jay Shetty, Director of Plant Needs Pty Ltd. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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.

10. On 26 April 2019, Plant Needs Pty Ltd applied to the Department to nominate Mr Patel to work as a gardener. On 16 September 2019, the application for approval of the nominated position was refused by the Department. Plant Needs applied to the Tribunal for merits review of that decision.

11. On 20 February 2023, the Tribunal affirmed the decision not to approve the nomination.

12. The Tribunal wrote to the applicant outlining the above information on 21 February 2023 in accordance with s 359A of the Act. The letter advised the applicant that the information was 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. The letter further advised that if the Tribunal were to rely on the information in making its decision it would affirm the decision under review.

13. The applicant was invited to comment on or respond to the information by 7 March 2023. On 7 March 2023, the Tribunal received a request for an extension of time to give comments or respond to the 21 February 2023 invitation. On 8 March 2023, the Tribunal advised the applicant that the request had been granted and that the comments or response must be received by 14 March 2023.

14. On 14 March 2023, the Tribunal received a request from Prakash Srinivasan of BTT Lawyers Pty Ltd (not the nominated representative/authorised recipient for this case) advising that he would be lodging a judicial review in relation to the nomination that corresponds to the nominated position. The letter requested that “the decision on this review application be put on hold until further notice.”

15. In response, the Tribunal notified the authorised recipient along with the applicant directly, that the decision would not be placed on hold indefinitely. The Tribunal does not speculate in relation to matters of judicial appeal and considers that it is bound to deal with cases expeditiously and efficiently based on the information before it, as is required by the President’s Direction on Conducting Migration and Refugee Reviews.

16. Based on the evidence before the Tribunal, it finds that the visa application is not the subject of an approved nomination. Therefore, cl 186.223(2) is not met.

17. 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.

18. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third named applicants do not satisfy the secondary criteria for a grant of a visa, on the basis that they are not a member of a family unit of a person who holds a Subclass 186 visa.

    DECISION

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

    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.