Prasad (Migration)

[2020] AATA 4059

Prasad (Migration) [2020] AATA 4059 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ajaykumar Prasad
Mrs Kalpana, also known as Inderjit Kaur Ajaykumar Prasad
Mr Yatharth Ajay Prasad
Mr Anubhav Ajay Prasad

CASE NUMBER:  1825716

HOME AFFAIRS REFERENCE(S):          BCC2017/3247109

MEMBER:Andrew McLean Williams

DATE:26 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 26 August 2020 at 1:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – nomination refused– not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.233

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 16 August 2018 refusing 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 September 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 (‘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.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 6 July 2018 a delegate of the Minister refused to approve the application for approval of a nomination position that had been made by Tushaan Enterprises Pty Ltd. This was the position for purposes of cl.187.233(1) in the case of the first-named applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first-named applicant can satisfy the requirements of cl. 187.223.

   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 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.

10. On 6 July 2018 a delegate of the Minister refused to approve the position nominated by Tushaan Enterprises Pty Ltd.  This decision was the subject of an application for review before the Tribunal, filed by Tushaan Enterprises Pty Ltd on 19 July 2018.  On 14 July 2020 the Tribunal determined that it had no jurisdiction to consider that application for review.  In the result the decision made by the delegate on 6 July 2018 remains operative.

11. On 10 August 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act, identifying that the applicant remained unable to meet the requirements of cl. 186.233 and requesting written submissions in response to that by no later than 24 August 2020. As at the date of this decision no submissions have been received from the applicant.

12. Therefore, cl.186.223 is not able to be met by the first-named applicant.  In these circumstances the other family members of the first-named applicant are also unable to meet the requirements of cl.186.311.

13. 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

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

    Andrew McLean Williams
    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.