Singh (Migration)

Singh (Migration) [2021] AATA 5411 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Lovjinder Singh
Mrs Sumanpreet Kaur
CASE NUMBER:  1827711
HOME AFFAIRS REFERENCE(S):          BCC2017/2293915
MEMBER:Amanda Mendes Da Costa
DATE:23 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 23 September 2021 at 3.09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – 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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Customer Service Manager ANZSCO 149212.
The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
The applicants appeared before the Tribunal on 17 September 2021 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing and that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing.
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 video. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The Tribunal has had the opportunity to view both the file of the Department and of the Tribunal in respect of the applicants.
On 26 August 2021 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information which the Tribunal considered if accepted and relied upon by the Tribunal would be the reason or part of the reason for it affirming the decision made by the Department to refuse to grant the applicant a subclass 186 visa. That information was that on 18 June 2021 the Tribunal determined that it had no jurisdiction to review the delegate’s decision as the nominating company Best GJK Drycleaners Pty Ltd (the nominator) had been deregistered. This meant that the applicant was not be subject of an approved nomination
The Tribunal explained that the above information was relevant to its review because it was a requirement for the grant of the visa that the position specified in his visa application was the subject of an approved nomination.
The Tribunal explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination. This would mean that the applicant did not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review.
The Tribunal advised the applicant that any comments or response should be provided by 9 September 2021.
On 7 September 2021 the applicants provided a written response to the Tribunal’s invitation, including the following submissions:
·They understand that it is a requirement for the grant of the subclass 186 visa that the position specified in the visa application is the subject of an approved nomination.
·The nominator ceased to operate in early 2021.
·When the nomination application was lodged in June 2017, the nominator was operating its business at full capacity.
·The nominator’s business was also operating at the time of the delegate’s decision to refuse the nomination application and at the time it lodged a review application with the Tribunal.
·Had the nominator’s review application been determined by the Tribunal whilst the employer was fully functional and operating, the business would have satisfied the provisions for the approval of the nomination and the grant of the applicant’s visa.
·The nominator was unable to survive the financial consequences of the Covid-19 pandemic.
·The applicant’s career is finished. He is aged 34 years and is married with a young child. He has a family to support and believes he has been disadvantaged by the time taken by the Tribunal to determine the applications for review for both the applicants and the nominator.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.186.223.
Nomination of a position
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.
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.
During the course of the hearing, the Tribunal discussed with the applicant, the information contained in its s.359A invitation and in particular the fact that the applicant was not the subject of an approved nomination.
The applicant adopted the contents of the response dated 7 September 2021 and told the Tribunal that he and the nominator had been disadvantaged by the delay in the Tribunal hearing the nominator’s review application as the nominator was successfully operating its business when its review application was lodged with the Tribunal. The nominator’s business had subsequently been adversely affected by the Covid-19 pandemic and was no longer operating. The applicant accepted that the nominating company had been deregistered but considered that the outcome for both the nominator’s and the applicants’ applications for review would have been different if it had not taken so long for the Tribunal to consider them.
The applicant told the Tribunal that the lack of an approved nomination had caused him and his family distress and affected him badly. The Tribunal accepts that the refusal of his visa application has been an emotionally experience for him, that he is married with a young child and that his family is dependent on him for financial support.
The Tribunal acknowledges that although the nominator’s application for review was lodged in June 2017, it was not determined until June 2021. However, as the Tribunal explained to the applicant during the hearing, it has a large number of cases awaiting determination by it.
Based on the evidence before it, the Tribunal is satisfied that on 9 August 2018 the application for approval of the nominated position for the applicant made by the nominator was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but on 18 June 2021 the Tribunal found that it did not have jurisdiction to review the delegate’s decision, on the basis that the company had been deregistered. This means that nominator’s application for the nominated position has not been approved.
There is no evidence to suggest that the applicant is the subject of any other approved nomination.
Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl.186.223.
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.
As the Tribunal has found that the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, it does not consider that the application of the second named applicant should be reconsidered as she is not a member of the family unit of a person who has satisfied the primary criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Amanda Mendes Da Costa
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.

[2021] AATA 5411

23 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction