Simaranjit Kaur (Migration)

[2020] AATA 1142

Simaranjit Kaur (Migration) [2020] AATA 1142 (20 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Simaranjit Kaur

CASE NUMBER:  1724640

HOME AFFAIRS REFERENCE(S):          BCC2017/2327230

MEMBER:  De-Anne Kelly

DATE:  20 February 2020

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the

applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 20 February 2020 at 2:51pm

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

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

CASES
Singh v Minister for Immigration and Border Protection [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

   Immigration and Border Protection on 26 September 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in a nominated position.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because on the 8 August 2017 the employer nomination lodged by Om Mahalaxmii Pty Ltd was refused by a delegate of the Minister being the nomination referred to in cl.186.223(1).

6. The applicant appeared before the Tribunal on 4 February 2020 at 9.30am to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.186.223(2) which provides as follows;

   (2)      The Minister has approved the nomination.
   Nomination of a position

9. 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.

10. 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

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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.

1. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal. The Tribunal found Om Mahalaxmii Pty Ltd withdrew their employer nomination review application and it followed that there was no longer an application to review. Therefore, the employer nomination was not approved.

2. On the 5 December 2019, the Tribunal, by email, wrote to the applicant under s.359A of the Migration Act inviting her to comment on or respond to the information as follows.

   ·On 30 June 2017, you applied for a Employer Nomination (Permanent) visa. On your application form, under the heading “Nomination Details”, you referred to an Employer Nomination, lodged by Om Mahalaxmii Pty Ltd.

   ·On 8 August 2018, the Employer Nomination lodged by Om Mahalaxmii Pty Ltd. was refused by a delegate of the now Minister for Home Affairs. An application for review of this nomination refusal was lodged with the Tribunal.

   ·On 13 August 2019, the Tribunal accepted a withdrawal if the employer nomination refusal application lodged by Om Mahalaxmii Pty Ltd.

This information is relevant to the review because one of the criteria that must be met

for grant of an Employer Nomination (Permanent) visa, cl.186.223(2) of

Schedule 2 to the Migration Regulations 1994, requires that the nomination referred to

for meeting the criteria in cl.186.223(1) must be approved.

Since the application for review in regards to the refused Employer Nomination was

withdrawn by Om Mahalaxmii Pty Ltd. the decision made by the delegate of the now

Minister for Home Affairs stands. Therefore, the Employer Nomination is not approved.

If we rely on this information in making our decision, we may find that the nomination
was not approved and you will be unable to meet cl.186.223(2). If that criterion is not

met, the visa cannot be granted and we must affirm the decision under review to refuse to

grant the visa.

1. The applicant was advised that a response was required by the 19 December 2019 or an extension of time could be requested but the request must be made before this date.

2. On the 18 December 2019, the applicant sent an email requesting an extension of time, which was granted to 2 January 2020. On the 2 January 2020, the applicant responded citing a medical condition that prevented her bearing children and caused her divorce from her ex-husband. A Doctors medical report was attached attesting to her medical condition. The applicant stated that her employer had been declared bankrupt and gone into liquidation. She requested more time to find a ‘new nomination to apply for work visa.’ The Tribunal considered this a response to the invitation and invited the applicant to the hearing scheduled for the 31 January 2020.

3. At the hearing, the applicant was very emotional about her situation. She is very concerned that her medical condition will make her unmarriageable in India where there is more prejudice than in Australia. Her Father is dead and her Mother is elderly and cared for by her brother and sister-in-law. They are helpful and supportive of the applicant. The Tribunal advised that it was a mandatory requirement for the approval of the visa application that the related employer nomination was approved and since it had not been approved, the Tribunal did not have discretion to approve the visa application. The applicant asked for additional time to lodge another employer nomination that may or may not link to the visa application

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under review. The Tribunal advised that it had now been over two years since the applicant had lodged her application for review and the Tribunal needed in a fair and just manner to proceed to a timely decision on the case.

1. The Tribunal relies on cl.186.223(1) being the original employer nomination and that

   repeated nominations either from the original employer or a new employer would not satisfy cl.186.223(1). There was case law to support the argument that the approved nomination had to be the one referred to in cl.186.223(1). The Tribunal considered Justice Mortimer’s finding in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [89]­[90].

   ‘The structure of reg.5.19 contemplates (whether for sub-reg. (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the mattes on the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits, review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 265 ALR at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant...The scheme intends it to be a “one off” process, so that the visa application is considered against a specific employer nomination and specific approval of that nomination by the Minister (or his delegate)’

2. The Tribunal advised the applicant that she could have a further 14 days to seek professional migration advice and if required she could request an extension of time. The applicant did not request an adjournment at the hearing.

3. To date there has been no further communications or submissions from the applicant.

4. The Tribunal is obliged to make a timely decision in this matter.

5. Since the Tribunal has found there is no approved nomination to satisfy cl 186.223(2), the visa applicant, Ms Simaranjit Kaur therefore does not meet 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 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

8. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

   De-Anne Kelly
   Member

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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.

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