Singh (Migration)

[2021] AATA 1413

Singh (Migration) [2021] AATA 1413 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Avtar Singh
Mr Himmat Singh Thind
Mrs Jaskirat Kaur

CASE NUMBER:  1819789

HOME AFFAIRS REFERENCE(S):          BCC2017/2291808

MEMBER:Penelope Hunter

DATE:12 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2021 at 2:26pm

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 19 June 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 28 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 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 Direct Entry stream, to work in the nominated position of Graphic Pre-press Trades Worker. The second named and third named visa applications are the child and wife of the applicant and have applied for the visa as a member of his family unit.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the related nomination application lodged by The Trustee for the Sunny’s Family Trust was refused by the delegate on behalf of the Minister.

6. The Tribunal received an application for review of the delegate’s decision from the applicants on 6 July 2018.

7. On 25 February 2021, the Tribunal invited the applicants to attend a telephone hearing before the Tribunal to give evidence and present arguments, on 9 April 2021.

8. On 26 March 2021, the Tribunal wrote to the applicants pursuant to the provisions of s.359A of the Act inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to the Tribunal upon review affirming the decision of the Department to refuse the nomination application lodged by The Trustee for the Sunny Family Trust on 29 January 2021. The Tribunal explained that the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl. 186.223(2) of Schedule 2 to the Regulations.

9. On 6 April 2021, the Tribunal received a letter of submission from the representative of the applicant. It was submitted that the business of the nominator of the applicant was impacted by a domestic dispute as the operators separated and closed down the business. The applicant had worked in the business from November 2014 to when he was told to leave in June 2018, which was a matter beyond the applicant’s control. From July 2018 he obtained employment part time with Signmax Printing Pty Ltd until 30 June 2019, and he also obtained a Certificate III in Light Vehicle Mechanical Technology in May 2019. From September 2020 he has working full-time as an auto-mechanic with Autosmart Vic. It was requested that the applicant be given some time to undertake the process of organising for his skills to be assessed so that he could lodge a subclass 494 visa application, or alternatively the applicant was in discussions with a regional employer in relation to a job offer in the position of Graphic Pre-press Trades Worker. A copy of a letter of intention from Signmax Printing in favour of sponsoring the applicant was also attached.

10. On 7 April 2021, the Tribunal wrote to the applicant and acknowledged receipt of the submissions and advised that the hearing date remained confirmed.

11. The applicant only, appeared before the Tribunal on 9 April 2021 by telephone. The representative for the applicant did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the nomination associated with the visa application of the applicant has been approved.

    Nomination of a position

14. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

15. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

16. The applicant applied for the visa on the basis of a nomination in the position of Graphic Pre-press Trades Worker by the Trustee for the Sunny’s Family Trust. As set out in the decision of the delegate, provided by the applicant to the Tribunal, this nomination was refused by the Department on 19 May 2018.

17. The Trustee for the Sunny’s Family Trust had applied to the Tribunal for a review of the Department decision to refuse the nomination. As set out in the letter sent to the applicant pursuant to s.359A of the Act, and discussed with him at the hearing, upon review on 29 January 2021, the Tribunal affirmed the decision of the Department.

18. The applicant told the Tribunal at the hearing that the directors of the company who was the Trustee of his former employer, were a husband and wife team. When they separated the business operations changed and it was uncertain which of them would take over the business. The applicant left employment in June 2018 due to the uncertainty with his position, however he was informed by the male director, Mr Rayat, if he ended up assuming control of the business, he may re-engage the applicant. This did not eventuate, the business closed down and the applicant found himself another job. The applicant claimed that this was a situation outside his control. The applicant said that his current employer was interested in sponsoring him and he wanted the Tribunal to delay making a decision so he could explore further this visa opportunity. He also claimed his current employer had been uncertain for some time due to COVID-19 business disruption as to whether he could offer the applicant a permanent position and for this reason he wished for additional time.

19. The Tribunal carefully considered the submissions of the applicant, however the applicant in his evidence did not demonstrate that events would transpire that would have a material effect on the outcome of the decision under review. He did not claim that there were circumstances that would lead to the approval of the nomination or that the position relevant to the visa application under review was still available. The applicant had not worked for the nominator since June 2018, proximate to the time the application for review was lodged with the Tribunal. It was noted that the submissions from his representative set out that he had first commenced working for his potential sponsor in August 2018, and had been known to this employer for some time prior to COVID-19. The applicant had been notified of the hearing on 25 February 2021, and put on notice prior to the hearing through the correspondence pursuant to s.359A of the Act of the relevant issue in the present case. Further, on his evidence, the applicant was aware from 2018 that there were problems with approval of the associated nomination, and it was considered that he had had the opportunity of considerable time to explore other visa options. In the circumstances the Tribunal did not consider it appropriate to further delay the matter.

20. On the evidence before it, the Tribunal finds that the relevant nomination by The Trustee for the Sunny Family Trust in respect of the visa application under review has not been approved. The Tribunal acknowledges that the breakdown of his former employers’ marriage and subsequent cessation of the business was a matter outside his control, however the approval of the nomination is a requirement of the visa. It is not a matter in which the Tribunal has any discretion. It therefore follows that the applicant has not met cl.186.223(2) and cl.186.223 of Schedule 2 to the Regulations is not met as a whole.

21. 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.

22. As the second and third named applicants applied for the visa as a member of the applicant’s family unit because the applicant does not meet the primary requirement for the visa and there is no evidence to suggest that the second or third named applicant meet the primary requirement for the visa. In the circumstance the Tribunal also affirms the decision in respect of the second and third named applicants.

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.