Singh (Migration)

[2020] AATA 4989

Singh (Migration) [2020] AATA 4989 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jasdeep Singh
Mrs Gagandeep Kaur

CASE NUMBER:  1807394

HOME AFFAIRS REFERENCE(S):          BCC2017/1100185

MEMBER:Karen McNamara

DATE:10 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2020 at 10:09am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Entrance Transition stream – Transport Company Manager (ANZSCO 149413) – no approved nomination – tribunal affirmed nomination refusal – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(A)
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311, rr 1.13A, 1.13B

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

2. The applicants applied for the visas on 21 March 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 first named applicant Mr Jasdeep Singh (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Transport Company Manager (ANZSCO 149413).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Jasdeep Singh to be the subject of an approved nomination. The delegate found that the nomination lodged by Quick N Fast Courier Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 29 January 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mrs Gagandeep Kaur could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 19 March 2018 for review of the delegate’s decision.

9. The Tribunal notes that at the time of its decision there is no review application lodged with the Tribunal on behalf of the applicant’s child Master Subegh Singh Kailay.

10. On 14 September 2020, the applicants represented by Mr Jasdeep Singh (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kamaljeet Singh (the nominator) in the related matter for the nomination application (AAT Case file 1802671). The related matters were heard concurrently in a combined hearing.

11. 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 applicants. 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 is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

12. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

15. 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.

16. 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 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.

17. On the 16 October 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Quick N Fast Courier Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

18. On 20 October 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Quick N Fast Courier Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

19. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 3 November 2020 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

20. On 27 October 2020, the Tribunal received an email from the applicants authorised representative seeking an extension of time for the applicants to respond to the Tribunal’s invitation dated 20 October 2020. The email stated ‘ My client requires some time to prepare his adequate response. Therefore, I request you to give us some time in order to prepare an adequate response.’

21. On 27 October 2020, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient), advising that a further extension to provide information was granted to 6 November 2020.

22. The Tribunal is satisfied that it has afforded the applicants adequate time and opportunity to respond to the Tribunal’s request. At the hearing of 14 September 2020, the Tribunal provided the applicant with the opportunity to provide further submissions and evidence. On 25 September 2020 numerous evidence was lodged with the Tribunal by the applicant and nominator’s authorised representative. The Tribunal has also had regard to the fact that the applicants visa application was refused by the Department on 7 March 2018. The applicants submitted a copy of the primary decision record with their review application. As a result, the Tribunal observes that the applicants have been aware for over two and half years of the reasons for their visa application refusals.

23. On 6 November 2020 the applicant submitted to the Tribunal in summary that the Tribunal take into consideration the applicant’s work history with the nominator and his hopes and plans for his family and their future in Australia. The applicant requested the Tribunal to consider his case with ‘compassion and arrive at a decision which allows me to stay here permanently with my wife and son.’

24. The Tribunal whilst sympathetic to the applicant’s circumstances, observes that it has no discretion within the Act or Regulations to waive the requirements of cl.186.223.

25. At the hearing of 14 September 2020, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

26. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

27. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

28. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

29. In relation to the second named applicant Mrs Gagandeep Kaur, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicant, Mrs Gagandeep Kaur as a member of Mr Jasdeep Singh’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311 of Schedule 2 to the Regulations.

30. The applicants have 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

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

    Karen McNamara
    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.