Rana (Migration)

[2019] AATA 3045

Rana (Migration) [2019] AATA 3045 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anand Rana
Mrs Neha Rani Neha Rani
Miss Vibhuti Rana
Master Krishna Rana

CASE NUMBER:  1712646

HOME AFFAIRS REFERENCE(S):          BCC2016/3547343

MEMBER:Amanda Mendes Da Costa

DATE:24 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2019 at 1:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hairdresser – not subject of approved nomination – Tribunal attempted to contact applicant – no response – fair opportunity to respond – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 363(1)(b)
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332

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 30 May 2017 to refuse 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 25 October 2016. 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 Hairdresser ANZSCO 391111.

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 applicant did not have an approved nomination for the position to which the application relates.

6. The applicants appeared before the Tribunal on 13 February 2019 to give evidence and present arguments. The hearing was conducted as a joint hearing with the nomination refusal review hearing of the applicant’s prospective employer, Classic Scissors Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has an approved nomination for the position of Hairdresser ANZSCO 391111.

   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. The Tribunal notes that on 30 April 2019 the Tribunal affirmed a decision to refuse a nomination application made by the applicant’s prospective employer, Classic Scissors Pty Ltd for the nomination of the position of Hairdresser ANZSCO 391111 for the applicant.

12. Pursuant to s.359A of the Act on 9 May 2019 the Tribunal wrote to the applicants, inviting them to comment on or respond to the Tribunal’s decision to affirm the primary decision in relation to the applicant’s prospective employer and the fact that if the nomination of an occupation in association of his visa application has not been approved pursuant to regulation 5.19(3) of the Migration Regulations 1994, the requirements of cl.186.223 of Schedule 2 to the Regulations are not met and the applicant did not meet the criteria for grant of an Employer Nomination (Permanent) visa.

13. The invitation was sent to the last address provided in connection with the review and advised that if the comments or response were not provided in writing by 23 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response.

14. The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It is also had regard to the decision in regarding the reasonableness of any request for adjournment and the Full Federal Court decision in Minister for Immigration and Border Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well is a more recent decision in Kaur v Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.

15. The Tribunal considered whether, in the circumstances of this case, the information that the primary applicant meets the requirements of cl.186.223 of the Regulations is likely to be forthcoming, whether the applicant has had a fair opportunity to provide the relevant information or documents already and the significance of the informational documents of the applicant.

16. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the requirements of cl. 186.223 of the Regulations.

17. Given that the nomination of an occupation in association with his visa application has not been approved under Regulation 5.19(3), the requirements of cl.186.223 are not met by the applicant.

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.

19. In relation to the second, third and fourth named applicants, the Tribunal finds that as the primary visa applicant does not satisfy the criteria for the grant of an Employer Nomination (Permanent) (Class EN) visa, the second, third and fourth named applicants cannot meet the criteria for the grant of Subclass 186 visas as members of the family unit of a person who has satisfied the primary criteria.  The Tribunal therefore affirms the decision under review in relation to the second, third and fourth named applicants.

    DECISION

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

    Amanda Mendes Da Costa
    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.