Sekhon (Migration)

[2020] AATA 3085

Sekhon (Migration) [2020] AATA 3085 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ramandeep Singh Sekhon
Mrs Gagandeep Kaur Grewal
Mr Viraj Singh Sekhon

CASE NUMBER:  1821107

HOME AFFAIRS REFERENCE(S):          BCC2017/2340260

MEMBER:Andrew George

DATE:11 June 2020

PLACE OF DECISION:  Darwin

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

Statement made on 11 June 2020 at 7:44pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 2 July 2018 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 30 June 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 (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 Cook – 351411 for WJ Trading Co Pty Ltd.

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 relevant nomination was refused by a delegate of the Minister for Immigration and Border Protection. The Tribunal notes that the delegate stated that “As the appointment has been refused, clause 186.223(3) is not met”. From the delegate’s reasoning, the Tribunal assesses that this sentence contains typographical errors and that the delegate meant “As the nomination has been refused, clause 186.223(2) is not met”. In any event, an application for merits review of the relevant nomination was sought in the Tribunal in Case Number 1817561. On 27 May 2020, the Tribunal affirmed the decision under review to refuse the nomination.

6. On 28 May 2020 the Tribunal sent the applicants an invitation under s.359A of the Act to comment on or respond to certain information which it considered would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decisions under review. This invitation read, in part:

   “The particulars of the information are:

   ·The application for approval of the nominated position made by WJ Trading Co Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 11 June 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.”

7. On 11 June 2020, at 4:46pm, the Tribunal received an application for an extension of time from the applicant. This application included the following statement:

   “my employer told me about nomination is not approved and im still discussing or looking a Legal advisor or Agent to speak on behalf of me.

   Can you provide me some more time to reply you properly as i still do not what i really have to do.”

8. Below that statement was evidence that the Tribunal had emailed the applicant the s.359A invitation on 28 May 2020, which occurred in addition to any notification that the applicant received from his employer. That employer is not named. The extension of time application did not outline any steps the applicant had taken to instruct a legal practitioner or registered migration agent. It did not indicate how much time was sought. It did not include any attempt to address the particulars contained in the s.359A letter, or outline how such an attempt to address those particulars may be made. The Tribunal notes that on 21 January 2020 the applicant filed a Form 1022 removing Mr Robert Liu’s (MARN 0425543) contact details and substituting his own. Accordingly, the application for an extension of time is refused and the matter has proceeded to decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. On the evidence before it, the Tribunal is satisfied that the application for approval of the nominated position made by WJ Trading Co Pty Ltd was refused by a delegate of the Minister. The nominator sought a review of that decision, but it was affirmed by the Tribunal on 27 May 2020 in Case Number 1817561. The Tribunal is therefore satisfied that WJ Trading Co Pty Ltd’s application for the nominated position has not been approved. Therefore, cl.186.223(2) is not met.

13. 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

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

    Andrew George
    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.