Singh (Migration)

[2022] AATA 898

Singh (Migration) [2022] AATA 898 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jatinder Singh
Mrs Muninder Kaur

CASE NUMBER:  1819295

HOME AFFAIRS REFERENCE(S):          BCC2017/2257202

MEMBER:Angela Julian-Armitage

DATE:12 January 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 12 January 2022 at 5:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager – nomination refused– tribunal affirmed nomination decision –not the subject of an approved nomination –– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

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 2 July 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 26 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 (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 nomination stream, the Direct Entry nomination 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 nomination stream, to work in the nominated position of Customer Service Manager – ANZSCO 149212.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the relevant nomination was not approved.

6. The applicants were represented in relation to the review by their registered migration agent.

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 satisfies the provision of cl 186.223(2) in that the position that the applicant is being employed in has had a nomination approved.

   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 nomination stream that identifies the 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 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.

11. In the present case, the Tribunal held a separate hearing for the applicant as he was not able to appear on the same day as his nominator. The hearing took place on 5 January 2022 so that the applicant could have an opportunity to be heard in relation to the circumstances of his case.

12. The Tribunal explained that the review of the refusal to grant the nomination of his position within his employer’s business had been affirmed on 15 December 2021. The Tribunal also explained that without a valid nomination in place for his position, his application before this Tribunal could not succeed.

13. The applicant was then given an opportunity to put his case to the Tribunal which, in the main, consisted of the long history of employment with his nominator and that he felt that there had been a failure to provide both the delegate and this Tribunal with up-to-date financials to prove that the business could support its staff including his entitlements.

14. Whilst the Tribunal empathises with the applicant’s position, the requirement for the applicant’s visa application to be underpinned by a valid nomination is not one that is open to the exercise of this Tribunal’s discretion.

15. Consequently, the provisions in cl 186.223 are not met.

16. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition nomination 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 nomination stream have not been met, the decision under review must be affirmed.

17. Given that the applicant does not meet the requirements of the Regulations, Mrs Muninder Kaur does not satisfy the provisions of cl 186.311 of the Regulations.

    DECISION

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

    Angela Julian-Armitage
    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.