Sharma (Migration)

[2018] AATA 5599

Sharma (Migration) [2018] AATA 5599 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Aman Sharma
Mr Yuvraj Singh
Mr Gurinder Singh

CASE NUMBER:  1807505

HOME AFFAIRS REFERENCE(S):           BCC2016/3475811

MEMBER:Alison Mercer

DATE:26 November 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 26 November 2018 at 10:55am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 Home Affairs on 27 February 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 19 October 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) applied for the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination. The delegate found that the Department had refused a nomination made in relation to the applicant by her employer, Cobram Curry Pty Ltd, on 17 January 2018. As the applicant did not meet cl.186.223, she could not be granted a subclass 186 visa. The delegate also refused to grant subclass 186 visas to the second and third named applicants (the applicant’s husband and child) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 20 March 2018, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Tanveer Singh, as their representative and authorised recipient for correspondence. They subsequently appointed another migration agent, Mr Nilesh Bansal, to this position.

7. The applicants appeared before the Tribunal on 8 November 2018 to give evidence and present arguments.

8. The applicant told the Tribunal that she had held a subclass 457 visa for 2 years before making her subclass 186 visa application. Her former migration agent did not tell her that her employer’s nomination of her for the subclass 186 visa had been refused by the Department, nor did the agent apply for review of the nomination refusal. The applicant felt strongly that she was not to blame for these incidents and was now in a difficult position despite being genuine in her intentions and her work for her employer. The applicant confirmed that she ceased work for her nominating employer about 6 months ago, due to the refusal of the nomination. The applicant and her agent asked the Tribunal to consider referring her case to the Minister for consideration of the exercise of Ministerial discretion to grant them other visas pursuant to s.351. The Tribunal indicated that it would consider this request but made no guarantee that it would make the referral.

9. On 20 November 2018, the Tribunal received advice from the applicants’ agent indicating that they withdrew their request for Ministerial intervention as the applicant had received an invitation to apply for a skilled visa offshore.

10. 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

11. 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.

12. 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.

13. The applicants did not dispute the finding by the delegate that the nomination of the applicant lodged by her employer, Cobram Curry Pty Ltd, was refused on 17 January 2018. There is no evidence before the Tribunal to indicate that the employer sought review of that decision (or attempted to lodge a new nomination).

14. It is a requirement for the Temporary Residence Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and, on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

15. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a Subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

16. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.  

17. Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl.186.223(2) and thus cannot meet cl.186.223 as a whole. She therefore cannot be granted a subclass 186 visa.

18. 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.

19. The Tribunal must also affirm the decision not to grant the second and third named applicants subclass 186 visas as it finds that they do not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to suggest that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    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.