Sharma (Migration)

[2018] AATA 1979

Sharma (Migration) [2018] AATA 1979 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Aarti Sharma
Ms Kartik Sharma
Mr Aanav Sharma
Mr Vinod Sharma

CASE NUMBER:  1700660

DIBP REFERENCE(S):  BCC2016/816730

MEMBER:Warren Stooke AM

DATE:14 June 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 14 June 2018 at 10:29am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry Scheme – Applicant was not the subject of an approved nomination –Previously held a 457 visa – 457 visa sponsor barred from sponsoring – Tribunal affirmed nomination refusal – Ministerial intervention referral sought – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 359AA
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19 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 5 January 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 27 February 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Human Resource Advisor ANZSCO Code 223111. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations on the basis that the applicant’s nominating sponsors’ application had not been granted under subregulation 5.19(3). In this regard, the nominating sponsor was CCCT Pty Ltd.

6. The applicants appeared before the Tribunal on 22 May 2018 to give evidence and present arguments.

7. At the commencement of the hearing the nominating sponsor sought to make submissions in relation to matters already determined by the Tribunal in Case No. 1620662, which was refused by the Tribunal, as currently constituted. The Tribunal advised that it was available for the applicant to call the nominating sponsor as a witness; however, this option was not exercised by the applicant, at that time.

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing and the applicant’s husband was sworn in to provide evidence, if required.

9. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

10. The Tribunal confirmed that the applicant had read the delegate’s decision of 5 January 2017 and that a copy of the decision had been provided to the Tribunal with the application.

11. At the commencement of the hearing the Tribunal outlined to the applicant the procedural process and explained the basic tenants of the criteria for a Subclass 186 visa as set out in Part 186 to the Migration Act 1994 (the Regulations) and specifically the requirements of cl.186.233 of Schedule 2 of the Regulations.

12. It was explained that a critical point for the current application is that the Minister has approved the nomination.

13. The Tribunal then explained to the applicant the provisions of s359AA and the obligation on the Tribunal to provide particulars of any adverse information concerning the applicant’s application. As such, the Tribunal ensured that he understood the process. The Tribunal then put to the applicant via s359AA a copy of the decision arising from the Tribunal in Case No. 1620662 and provided the applicant with the opportunity to consult with her representative regarding the content of the decision and to advise the Tribunal when she was ready to have a discussion regarding the decision.

14. At this juncture, the representative for the applicant advised that they understood what had happened in relation to the s359(2) request put to the nominating sponsor and acknowledged that there was no nomination for approval, as the employer had not responded.

15. The applicant stated that she had sent relevant information to the sponsoring nominator, which had not been provided to the Tribunal.

16. The Tribunal explained that in the nominating sponsors case the Tribunal reviewed the same information for the nominated position that was present when the delegate had undertaken a review and there was no additional information provided by the nominated sponsor at the time. Further the Tribunal advised that it does not have discretion in relation to cl.186.233 and is bound by the law.

17. The Tribunal provided an opportunity for the applicant to consult with her legal representative and thereby left the hearing room.

18. Following the adjournment, the representative for the applicant advised the Tribunal that the Tribunal’s hands were tied without an approved nomination.

19. The representative made a formal request for the matter to be referred to the Minister to be treated under compelling and compassionate grounds pursuant to s351.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant provided evidence that she had been in Australia since 2009 under the auspices of her husbands’ primary visa status whilst he was completing Certificates III and IV and then he switched to a 457 visa. The applicant advised the Tribunal that something happened to the company sponsoring the 457 visa, whereupon it was barred for three years. The applicant stated that she and her husband came up with the idea to obtain a 186 application but had to cancel a then existing 457 visa, which resulted in the loss of travel rights.

22. The applicant stated that her new employer had made an application for sponsorship, which was identified as Simgae Pty Ltd, who have advised the applicant of a preparedness to sponsor the applicant and has already made an application on 2 December 2017. The applicant stated that she had also applied for Permanent Residency.

23. The applicant stated that she has a Master’s degree in Human Resources from India and a Diploma in Child Care Services, which she completed in Australia whilst she has been working in that industry.

24. Currently the applicant is working for a multiple child care centre with five different companies and the applicant supports the company with recruitment and has a remuneration of $64,000 p.a. plus child care benefits worth $540 p.w.

25. The applicant stated that she has been in Australia for eight years and has not had an opportunity to go back to India. The applicant has a child in high school and a 2 year old in child care. The applicant and her husband have 2 properties and stated that they are tax paying community supportive people.

26. The applicant’s husband worked for PTC Victoria and now is an owner driver, with his own truck.

27. The issue in the present case is whether the applicant has an approved position by their nominating sponsor, which would satisfy the criteria pursuant to cl.186.233.

    Nomination of a position

28. For applicants in the Direct Entry stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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. In addition, where the associated nomination is made on or after 1 July 2017, the position must be the position in relation to which the applicant is identified in that nomination under r.5.19(4)(a)(ii).

29. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

30. The Tribunal is satisfied that the applicant does not have an approved nominated sponsor following the decision in Case No. 1620662.

31. Therefore, cl.186.233 is not met.

32. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    Secondary applicants

33. The delegate also refused visas to the secondary applicants, who are included in the application.

34. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 186.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa. As the applicant does not satisfy the primary criteria for a subclass 186 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visa, or any other subclass.

    DECISION

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

    Ministerial referral

36. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister. In this regard, the Tribunal is cognisant from the evidence that the applicant has two other applications on foot that provide relevant options for discussion with her legal advisors.

    Warren Stooke AM
    Member