Ram (Migration)

[2020] AATA 2264

Ram (Migration) [2020] AATA 2264 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Narsi Ram
Mrs Rekha Rani
Miss Anaya Singh

CASE NUMBER:  1723113

HOME AFFAIRS REFERENCE(S):          BCC2015/2172608

MEMBER:Mr S Norman

DATE:4 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2020 at 2:35pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – refusal affirmed on review – no response to tribunal’s s 359A letter – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Immigration and Border Protection on 13 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s notification of refusal letter was lodged with the Tribunal.[1]

   [1] See PDF – from p.167 (‘PDF’ refers to the merged copy of the Department Case File on the Tribunal CASEMATE database).  

2. The applicants applied for the visas on 29 July 2015. 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, to work in the nominated position of Program or Project Administrator (ANZSCO: 511112).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 12 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chander SAREEN. The applicant was represented in relation to the review by their registered migration agent.

7. The Tribunal exercised its discretion to hold the interview by telephone. The interview 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 (and witness). After having inter alia received (and discussed) material information including at the hearing, the Tribunal is satisfied the applicant was given a fair opportunity to put his case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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.

10. 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.

11. On 21 July 2017 the nomination lodged by CNR Accounting & Taxation Pty Ltd, being the nomination referred to in paragraph 186.223(1), was refused by a Department delegate. A ‘Natural Justice’ letter was sent to the applicant on 21 July 2017 advising that the associated nomination lodged by CNR Accounting & Taxation Pty Ltd had been refused. At the date of the delegate’s decision, no reply was received. The delegate continued that as the appointment had been refused, cl.186.223(2) is not met; and cl.186.223 is not met.

12. The delegate then assessed whether the criteria for the grant of an Employer Nomination (subclass 186) visa met any other stream. They assessed the visa applicant’s claims under the Direct Entry stream. Under cl.186.233(1)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(4)(h)(i) or 5.19(2) as in force before 01 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant did not meet cl.186.233. Since cl.186.233 was not satisfied, the delegate found that the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Direct Entry stream was not satisfied. The delegate also assessed the claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet the requirements of cl.186.242. Since cl.186.242 was not satisfied, the delegate found that the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Agreement stream are not satisfied.  

13. The delegate also considered cl.186.311 (member of the family unit). However, as no person met the primary criteria for the grant of the visa, none were entitled to the visa as being members of the family unit of a person who had.

14. The delegate then refused to grant the applicants the Employer Nomination (Permanent) (Class EN) (Subclass 186) visas.

15. By s.359A letter dated 20 May 2020 (emailed to the authorised recipient), the Tribunal advised the applicant:

    On 18 May 2020, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer, CNR Accounting & Taxation Pty Ltd.

    The above information is relevant because cl.186.223(2) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed. You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 3 June 2020.

16. As at the time and date of this decision, no response had been received. In the circumstances, and based on the evidence before the Tribunal, I am not satisfied the applicant has met cl.186.223(2); or cl.186.223.  

17. The Tribunal also considered cl.186.311 (member of the family unit). However, as no person met the primary criteria for the grant of the visa, none were entitled to the visa as being members of the family unit of a person who had.

18. 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

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

    Mr S Norman
    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.