Ram (Migration)

[2021] AATA 1466

Ram (Migration) [2021] AATA 1466 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Reema Sanjeeta Ram
Mr Atish Kumar
Master Antariksh Ahaan Kumar

CASE NUMBER:  1819320

HOME AFFAIRS REFERENCE(S):          BCC2017/2827075

MEMBER:Mary Sheargold

DATE:30 April 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 30 April 2021 at 12:35pm

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

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

CASES
Singh v Minister for Immigration and Border Protection [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 14 June 2018 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 8 August 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 primary visa applicant is seeking the visa, in the 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(2) of Schedule 2 to the Regulations because the nomination application by Praveen Kumar for the position of Customer Service Manager had not been approved.

6. The primary visa applicant appeared before the Tribunal on 11 March 2021 to give evidence and present arguments in a combined hearing with the nominator, Mr Praveen Kumar.  The hearing was conducted via MS Teams video link.  The Tribunal also received oral evidence from Mr Kumar at the hearing.

7. The Tribunal exercised its discretion to hold the hearing by MS Teams video link. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video link. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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 186.223 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. The primary visa applicant’s nominating employer, Praveen Kumar, applied for approval of the position of Customer Service Manager (ANZSCO 149212) on 21 June 2017 but the application was refused by a delegate of the Minister for Home Affairs.  Mr Kumar applied to the Tribunal for a review of that decision.

13. On 11 March 2021, the primary visa applicant appeared before the Tribunal, and did so in a combined hearing with Mr Kumar who appeared in respect of the nomination application.  At the hearing, the Tribunal considered the issues relating to the refusal of the nomination by the delegate of the Minister for Home Affairs and the requirements of the nominating employer to satisfy the criteria for approval to nominate the applicant for her Subclass 186 visa, as well as the requirements for the applicant to be granted the visa.  Specifically, the Tribunal explained that the nomination application would need to be approved in order for the applicant’s application to be remitted to the Department for reconsideration.  The Tribunal notes that the primary visa applicant indicated that she understood this.

14. On 12 April 2021, the Tribunal made a decision in relation to the nomination application by Praveen Kumar affirming the decision of the delegate of the Minister for Home Affairs to refuse that application. 

15. On 14 April 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited them to comment on or respond to information that the nomination application in respect of their visa had been refused, and to do so by 28 April 2021.  On 28 April 2021, the primary visa applicant responded to the Tribunal’s letter.  In her response, she stated that:

    ·she was granted a Subclass 457 visa to work in the role of Customer Service Manager within Mr Kumar’s business PSMJ Accountants n Bookkeepers;

    ·she has learned and gained vast skills, knowledge and experience in her work at PSMJ Accountants n Bookkeepers, and is an asset to the company with years of experience and in-house training;

    ·PSMJ Accountants n Bookkeepers has always looked after her well regarding her wages, superannuation and training, and that she has envisioned growing the business to the next level;

    ·the business has expanded during her employment and now oversees 6 other businesses operated by Mr Kumar and that she is proactive and has contributed to the success of the business;

    ·she has worked in good times and bad times within the organisation and was able to maintain her employment during the Covid-19 pandemic, and that although the nomination was refused in 2018 on the basis that the company would not be able to pay her wages, it has continued to do so;

    ·the Department’s decision is causing a lot of anxiety, sadness and depression in her family, that they would have to start life from scratch if they had to go back to Fiji;

    ·the applicants have been law abiding individuals who have contributed to the Australian economy during their 8 years living in Australia;

    ·her 9 year old son is well settled in Australia having lived here for almost 8 years, that he is actively engaged in school and community activities, and has adapted to the Australian way of life; and

    ·on humanitarian grounds, they plead to the Department to reconsider their application as they have complied with the rules and regulations of this country, they are comparable to any working citizen in Australia, they already have jobs in hand, and Mr Kumar supports them to stay in Australia.

16. The Tribunal acknowledges that the applicants are in a very difficult position at present, but notes that it does not have any discretion to take the applicants’ personal circumstances into consideration in assessing whether or not there is an approved nomination from the nominating employer to satisfy cl.186.223(2) of Schedule 2 to the Regulations.

17. However, the Tribunal does wish to note that at the hearing, the Tribunal found the primary visa applicant to be a genuine and credible witness who has clearly worked for her nominating employer diligently for a number of years and in a very broad role.  She has taken on vital management roles for many aspects of Mr Kumar’s various business interests, not only the business by which she is employed in the role of Customer Service Manager. The Tribunal notes that Mr Kumar indicated his strong support for the primary visa applicant to continue working for him for the long term, and notes that Mr Kumar believes the primary visa applicant is critical to the management and success of his various business interests.  The Tribunal acknowledges that the applicants are in a vulnerable position due to their reliance on the primary visa applicant’s employer, Mr Kumar, in relation to their visa application.

18. Ultimately, the primary visa applicant’s submissions in response to the Tribunal’s letter sent on 14 April 2021 do not assist the Tribunal in making a finding of fact that there is an approved nomination from the primary visa applicant’s nominating employer to allow her to demonstrate that she can meet cl.186.223(2) of Schedule 2 to the Regulations. Based on the evidence before it, the Tribunal finds that the applicant cannot satisfy cl.186.223(2) of Schedule 2 of the Regulations because the position specified in the visa application is not the subject of an approved nomination.

19. 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(3), 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].

20. In this matter, the Tribunal notes that because there is no approved nomination for the primary applicant’s visa application, she cannot overcome her current inability to meet cl.186.223(2) in relation to her application.  The nomination by Praveen Kumar was specifically linked to her visa application, and that nomination was not, and now cannot be, approved. 

21. 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.

22. Further, because the primary visa applicant is unable to satisfy cl.186.223, the secondary applicants are unable to satisfy cl.186.311(a) because they are not members of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decision under review in relation to the secondary applicants must be affirmed.

    DECISION

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

    Mary Sheargold
    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.