Rupinderjit Singh (Migration)

[2019] AATA 6180

Rupinderjit Singh (Migration) [2019] AATA 6180 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Rupinderjit Singh
Ms Rajvir Kaur
Miss Bisman Grewal
Miss Hirdai Kaur Grewal

CASE NUMBER:  1716378

HOME AFFAIRS REFERENCE(S):          BCC2016/3959012

MEMBER:Mary Sheargold

DATE:21 October 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 21 October 2019 at 10:05am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Graphic Pre-press Trades Worker – no approved nomination – sponsor business closed – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223, 186.311; rr 1.13, 5.19

CASES

Singh v MIBP [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 Immigration and Border Protection on 11 July 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 24 November 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 Graphic Pre-press Trades Worker (ANZSCO 392211).

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 there was no approved nomination.

6. The applicants appeared before the Tribunal on 7 October 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent, but the representative did not attend the hearing.

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 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.

12. The first named applicant’s nominating employer, Narwee Media & Promotions Pty Ltd, applied to the Department for the approval of the position of Graphic Pre-press Trades Worker in respect of the applicant.  The Department refused to approve the nomination and the employer applied to the Tribunal for review of that decision.

13. On 30 July 2019, the Tribunal affirmed the Department’s decision not to approve the nomination in respect of the applicant.  On 12 August 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.

14. The particulars of that information were that the application for approval of the nominated position made by Narwee Media & Promotions Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration, that the nominator sought a review of that decision but it was recently affirmed by the Tribunal, and that this means that the nominator’s application for the nominated position has not been approved.

15. The letter told the applicants that this information was relevant to the review because if the Tribunal relied on this information in making its decision, it may find that the position specified in the first named applicant’s visa application is not the subject of an approved nomination, and this would mean that the first named visa applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

16. The applicants were invited to give comments on or respond to this information in writing by 26 August 2019, and the applicants were advised that a failure to respond would mean a loss of entitlement to appear before the Tribunal to give evidence and present arguments.  The letter was sent to the applicants’ representative’s email address provided to the Tribunal by the applicants as their address for correspondence.

17. On 26 August 2019, the applicants’ representative wrote to the Tribunal requesting an extension of time for responding to the letter dated 12 August 2019.  On 27 August 2019, the Tribunal wrote to the applicants and grated an extension until 10 September 2019.  On 9 September 2019, the applicants’ representative wrote to the Tribunal again, enclosing correspondence from the first named visa applicant and noting the first named visa applicant’s preference to attend a hearing to present evidence.  The Tribunal listed the matter for hearing on 7 October 2019 and the applicants attended the hearing on this date.

18. At the hearing, the applicants told the Tribunal that the first named visa applicant’s employer had recently gone out of business, and that the first named visa applicant’s employment had been terminated with little warning.  The first named visa applicant told the Tribunal that he had worked for his nominating employer for over 6 years, and that the business had expanded rapidly in recent years, and that the news of its demise had come as a shock to him.  The applicants told the Tribunal that the first named visa applicant was seeking new employment.

19. The applicants told the Tribunal that Bismal Grewal, one of the secondary applicants, had been granted Australian citizenship in 2018, and provided the Tribunal with evidence of her citizenship certificate and of her Australian passport.  The first named visa applicant argued that it would be unfair for his daughter to be required to return to India given that she had lived her whole life in Australia.  The applicants told the Tribunal that their family had been established in Australia for 13 years, and that it would be difficult for the family to return to India now.  The Tribunal noted its sympathy for the applicants’ situation, but emphasised that this evidence did not assist the first named visa applicant to overcome the fact that he did not have an approved nomination from his nominating employer.

20. As set out in paragraph 13 above, the Tribunal notes that on 30 July 2019, it affirmed the Department’s decision not to approve the nomination in respect of the first named visa applicant. The Tribunal finds that the first named visa applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

21. 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, 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].

22. In this matter, the Tribunal notes that because there is no approved nomination for the first named visa applicant’s visa application, he cannot overcome his current inability to meet cl.186.223 in relation to this application.  The nomination by Narwee Media & Promotions Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

23. Therefore, cl.186.223is not met.

24. The first named visa 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.

25. Further, because the first named applicant is unable to satisfy cl.186.223(2), the secondary applicants are unable to satisfy cl.186.311 because they are not the 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 decisions in relation to the secondary applicants must be affirmed.

    DECISION

26. 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.