Singh (Migration)

[2022] AATA 1601

Singh (Migration) [2022] AATA 1601 (4 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daljit Singh
Ms Kulwinder Kaur
Master Brahmjot Singh Sandhu

REPRESENTATIVE:  Mr Sobaran Singh (MARN: 9791702)

CASE NUMBER:  1834836

HOME AFFAIRS REFERENCE(S):          BCC2017/903029

MEMBER:Michelle East

DATE:4 April 2022

PLACE OF DECISION:  Perth

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

Statement made on 04 April 2022 at 2:44pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(1), (2), 186.311

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 13 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 March 2018. 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 (Cth) (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) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicants appeared before the Tribunal on 4 April 2022 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal confirmed with the applicant at the hearing that he was happy to proceed in this manner. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The Tribunal was assisted by an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    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 reg 1.13A and reg 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. On 11 February 2022 the Tribunal wrote to the applicant pursuant to section 359A of the Act with the following particulars of information:

    On 16 October 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of H.S Pty Ltd.  On 15 September 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 28 September 2018, to refuse the nomination stands.

14. As noted in that letter this information is relevant to the review because in deciding whether the applicant meets the requirements of clause 186.223(2) of Schedule 2 to the Regulations, the Minister needs to have approved the nomination referred to in paragraph 186.223(1). The applicant was invited to respond.

15. The applicant responded in time to the invitation and after explaining the situation with respect to the nomination, the Tribunal asked the applicant if he had anything further to add. 

16. The applicant expressed his frustration that he hadn’t done anything wrong and that he and his family were suffering due to mistakes made by his employer.

17. The Tribunal has significant sympathy for the applicant in this matter but unfortunately does not have any discretion to make a positive decision. The Tribunal explained carefully that it did not have any discretion to change the delegate’s decision without the nomination attached to this visa application being approved.

18. The Tribunal finds that the applicant is not the subject of a nomination approved by the Minister.

19. Therefore, cl 186.223 is not met.

20. 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.

21. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.186.311 which requires that the applicants must be a member of the family unit of a person who, having the satisfied the primary criteria is the holder of a Subclass 186 visa.

    DECISION

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

    Michelle East

    
    

    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.