Sarawgi (Migration)

[2018] AATA 4795

Sarawgi (Migration) [2018] AATA 4795 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nitesh Kumar Sarawgi
Mrs Mahima Sarawgi

CASE NUMBER:  1703911

HOME AFFAIRS REFERENCE(S):           BCC2016/2125972

MEMBER:Cathrine Burnett-Wake

DATE:5 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2018 at 1:26pm

CATCHWORDS
MIGRATION –Employer Nomination – Subclass 186 (Employee Nomination Scheme) –temporary residence transition stream – nominated position – program or project administrator – no current nomination approved – secondary applicants – unable to meet criteria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s65
Migration Regulations 1994 (Cth), Schedule 2 cl 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 Immigration and Border Protection on 16 February 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 22 June 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 Program or Project Administrator (ANZSCO 51112).

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 associated nomination application made by M.D. Exports and Imports Pty Ltd ATF The M.D.Family Trust was refused by the Department, as such, there was no approved nomination..

6. The first named applicant appeared before the Tribunal on 13 August 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. On 19 September 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

9. The particulars of the information were that the application for approval of the related nominated position, made by M.D. Exports and Imports Pty Ltd ATF The M.D.Family Trust, was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but it was recently affirmed by the AAT. Meaning that the nominator’s application for the nominated position has not been approved.

10. It was explained in the letter to the applicants that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

11. On 3 October 2018, the applicant’s representative responded to the s.359A letter. The representative outlined that M.D. Exports and Imports Pty Ltd ATF The M.D.Family Trust had decided to appeal to the Federal Circuit Court, as such it was the applicants expectation that the Tribunal would hold the relevant visa application review decision until the outcome of the Federal Circuit Court appeal.

12. On 4 October 2018, the Tribunal responded to the applicants request to delay making a decision, explaining to the applicants that the Tribunal does not speculate in relation to matters of appeal and considers that it is bound to deal with cases expeditiously and efficiently based on the information before it, as is required by the guidelines of good practice.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

15. 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.

16. 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.

17. M.D. Exports and Imports Pty Ltd ATF The M.D.Family Trust nomination application was refused by the Department and that decision was affirmed by the Tribunal.

18. The Tribunal finds that as there is no approved nomination, cl.186.223 is not met.

19. 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.

20. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second named applicant (the applicant’s spouse) as she does not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that she can meet the primary criteria in her own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.