SHARMA (Migration) - [2019] AATA 6144

SHARMA (Migration) [2019] AATA 6144 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr CHARANJEET SHARMA
Ms VANDANA SHARMA
CASE NUMBER:  1727544
HOME AFFAIRS REFERENCE(S):           BCC2017/2315513
MEMBER:Alan McMurran
DATE:17 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 17 October 2019 at 2:04pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – sponsoring employer’s position nomination refused – no jurisdiction to review refusal – employer stopped operating business – applicant seeking another sponsor – new application would not resolve issue with current review – member of family unit – newborn child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)
CASE
Kaur v Minister for Immigration [2017] FCCA 564
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Tribunal on 8 November 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (“the applicant”) is a citizen of India and the second named applicant is his spouse and they are seeking visas in the Temporary Residence Transition stream, for the applicant to work in the nominated position of Fleet Manager.
Background
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 Minister has not approved the nomination.
The applicant provided a copy of the delegate’s decision with this application for review. The Tribunal has available to it documents from the Department’s related file[1] and the documents provided by the applicant on the Tribunal’s file.
[1] BCC2017/2315513
On 9 September 2019, the Tribunal sent a letter to the applicant under section 359A of the Act, inviting the applicant to comment or respond to information about the application. In particular the Tribunal letter informed the applicant that a nomination application by Exotic Car Sales and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SHARMA (Migration) [2019] AATA 6144
Case: [2019] AATA 6144
Decision Date: 17 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by the first applicant, an Indian citizen, and his spouse. The core dispute concerned the refusal to grant the visas, which stemmed from the sponsoring employer's failure to secure an approved nomination for the applicant's position as Fleet Manager. The delegate refused the visas because the Minister had not approved the nomination, a prerequisite under clause 186.223(2) of Schedule 2 to the Regulations.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 186 visa, specifically whether the Minister had approved the nomination for the nominated position. This involved assessing whether the nomination had been approved, not subsequently withdrawn, and whether the position remained available to the applicant, among other conditions outlined in clause 186.223. The Tribunal also considered the secondary applicant's claim as a member of the family unit, which was contingent on the primary applicant meeting the visa requirements.

The Tribunal reasoned that the primary obstacle to granting the visas was the absence of an approved nomination. It noted that the employer's application for nomination approval had been refused, and a prior attempt to review that refusal by the Tribunal had been dismissed for lack of jurisdiction. Despite the applicant's submissions explaining the employer's difficulties and his desire to find a new sponsor and lodge a fresh nomination, the Tribunal found that there was no current approved nomination before it. Consequently, the applicant could not satisfy clause 186.223(2) of the Regulations.

The Tribunal affirmed the decision not to grant the visas to either applicant. As the primary applicant failed to meet the essential requirement of an approved nomination, the secondary applicant, who applied as a member of the family unit, also could not be granted the visa.

Orders

Orders of the court

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Background

Background to the litigation

In the present case, the first named applicant (“the applicant”) is a citizen of India and the second named applicant is his spouse and they are seeking visas in the Temporary Residence Transition stream, for the applicant to work in the nominated position of Fleet Manager.Background 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 Minister has not approved the nomination. The applicant provided a copy of the delegate’s decision with this application for review. The Tribunal has available to it documents from the Department’s related file[1] and the documents provided by the applicant on the Tribunal’s file.[1] BCC2017/2315513 On 9 September 2019, the Tribunal sent a letter to the applicant under section 359A of the Act, inviting the applicant to comment or respond to information about the application. In particular the Tribunal letter informed the applicant that a nomination application by Exotic Car Sales and Rentals Pty Ltd had been refused and that although the nominator had sought to review that decision by an application made 28 August 2017, the Tribunal had finalised that application on 4 March 2019, deciding it had no jurisdiction to review the decision. The Tribunal letter advised the applicant that on the information before the Tribunal, the nomination for the position identified by the visa applicant was not approved and there was no current review of that refusal decision. The applicant was informed that if the Tribunal relies on that information, and finds that there is no approved nomination, this review of the visa application would be affirmed. On 12 November 2018, following information provided by the applicant’s agent, the applicant’s newborn child (Eshaan) was sought to be added to the application. The Tribunal responded, referring the representative to the Department of Home affairs. The Tribunal has heard nothing further from the Department or the applicant about adding the child to this application. On 29 March 2019, the applicant had advised of his new contact details and address at Werribee in Victoria. On 20 September 2019, the applicant responded to the Tribunal’s request for information, with an explanation and a copy of the employment agreement he had earlier arranged with Exotic Car Rentals on 24 June 2013. No other information was provided and the applicants both appeared before the Tribunal on 16 October 2019 in a multi-application hearing list to give evidence and present arguments. The common issue in the hearing list for all applicants appearing that day was the absence of an approved nomination by the Minister. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages, although at the hearing, the applicant indicated he was comfortable with the proceedings continuing for the most part in English. At the end of the hearing, both the interpreter (who conversed with the applicant in Hindi) and the applicant himself confirmed the applicant had followed the proceedings in English and understood the proceedings as well as communicated what he had wanted to say in English

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is the subject of a nomination which the minister has approved under cl. 186.223 (2) of the Regulation.Nomination of a position 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. 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. The applicant’s written submission on 20 September 2019 is short and may be set out in full as follows:“In regards to call over email received pertaining to the visa refusal review lodged by myself, I wish to submit below submission with detailed timeline of the events which have surrounded my refusal: unfortunately due to poor collate of documents of the employer, our DNS nomination was refused; further leading to the refusal of these are as well and currently we lodged AAT for DNS visa which was refused only due to absence of approved nomination to meet the criteriaPlease refer to the attached letter were clearly employer demonstrated the genuine need of employee on the basis of my Australian study but at the last minute the employer denied to support the application or even to lodge review for the nomination refusal, landing me into extreme trouble.As requested to demonstrate an approved nomination, currently I do not have one but I’m looking forward to lodge nomination soon, as I hold a QA of study hence I do qualify of getting sponsored further for the stream in Australia. But I request Honourable Member to grant me some time for this.” [Reproduced as written] At the hearing, the Tribunal explained to the applicants the process for obtaining the visa and the need for an approved nomination, which the applicant confirmed he understood. The applicant said he needed time to find another employer and make a further nomination application in order for his visa application to follow. The applicant also sought to explain the circumstances why the nomination application was unsuccessful. He said that he had been in Australia since 2010, where he initially studied commercial cookery, obtaining a Certificate firstly and then a Diploma of Administration and Advanced Diploma, which he studied in the period from 2012 until 2014.

Decision

Reasons for decision

The secondary applicant has applied for the visa on the basis of being a member of the family unit of the first named applicant. As the applicant does not meet the requirement for the grant of the Subclass 186 visa, the Tribunal must also affirm the decision in respect of the secondary applicant.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alan McMurranMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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