Sidhu (Migration)

[2019] AATA 2146

Sidhu (Migration) [2019] AATA 2146 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sarabjit Kaur Sidhu
Mr Sewa Singh Sidhu
Mr Gurkirat Singh Sidhu
Mr Manpreet Singh Sidhu

CASE NUMBER:  1711949

DIBP REFERENCE(S):  BCC2016/4190476

MEMBER:Warren Stooke AM

DATE:5 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2019 at 12:13pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – Direct Entry stream – not employed by an approved standard business sponsor – non-attendance at hearing – request for Ministerial intervention – request to present further submissions declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 19 May 2017 to refuse to grant the visa applicants  Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. The applicants were invited to attend a hearing on 5 April 2019 and the applicants formerly advised the Tribunal on 29 March 2019, through their legal representative, of their intention not to attend the hearing. The advice was in the following terms:

   “Please note that the Applicants nor our office will attend the hearing on 5 April 2019. We kindly request that the Tribunal refer the matter to ministerial intervention after taking into account the legal submissions and documents provided on 28 March 2019. Our office intends to supply further documentation in support of their application, next week.”

3. The Tribunal is prepared to accept submissions and material up to the time of decision and does not accept the dictates of the representative regarding timing in this matter, given that an opportunity was provided at hearing to present further submissions and enable the Tribunal to seek evidence directly from the applicant, which the Tribunal notes was declined.

4. The representative for the applicant provided the Tribunal with a detailed submission concerning the circumstances of the applicant, together with numerous declarations from third parties in support of the applicant. The Tribunal has considered this material and notes that the representative for the applicant conceded in submissions that the applicant does not have an approved standard business sponsor, which is the germane issue in this case.

5. On the basis that the applicant has not been able to satisfy the Tribunal that she is employed by an approved standard business sponsor, the Tribunal is not satisfied that the applicant meets cl.186.223(2).

6. Therefore, cl.186.223 is not met.

7. 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.

8. As the primary applicant does not meet the criteria provided in cl.186.223, the Tribunal therefore finds that the secondary applicants do not satisfy cl.186.311 of Schedule 2 of the Regulations.

   DECISION

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

   Ministerial referral

10. 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.

    Warren Stooke AM
    Member