Singh (Migration)

[2020] AATA 3228

Singh (Migration) [2020] AATA 3228 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajinder Singh
Ms Balwinder Kaur
Mr Amninder Singh

CASE NUMBER:  1713415

HOME AFFAIRS REFERENCE(S):          BCC2016/3489496

MEMBER:Cathrine Burnett-Wake

DATE:12 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2020 at 2:44pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – the Direct Entry stream – Transport Company Manager –applicant failed to provide the requested information – nomination refused–not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 360, 363
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 20 June 2017 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 20 October 2016. 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 (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Transport Company Manager (ANZSCO 149413). The nomination was lodged by MANI LOGISTICS PTY LTD 18 May 2017.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233(3) of Schedule 2 to the Regulations because the nomination by MANI LOGISTICS PTY LTD was refused.

6. On 19 May 2020 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review. The letter stated:

   In conducting the review, we are required by the Migration Act 1958 to invite you to

   comment on or respond to certain information which we consider would, subject to

   your comments or response, be the reason, or a part of the reason, for affirming the

   decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·On 20 October 2016 you lodged an application for a Subclass 186 visa with the Department of Home Affairs (“the Department”).

   ·On 20 October 2016 Mani Logistics Pty Ltd (“the nominator”) applied to nominate you for the position of ‘Transport Company Manager’.

   ·On 18 May 2017, the application for approval of the nominated position made by Mani Logistics Pty Ltd was refused by a delegate of the Minister for Immigration.

   ·The nominator sought a review of that decision but on 4 May 2020 it was affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   ·Departmental records indicate that you are not currently the subject of an approved nomination.

   This information is relevant to the review because it is a requirement for the grant of

   the visa that the position specified in your visa application is the subject of an

   approved nomination.

   If we rely on this information in making our decision, we may find that the position

   specified in your visa application is not the subject of an approved nomination. This

   would mean that you do not satisfy a requirement for the grant of the visa and that we

   must affirm the decision that is under review.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 2 June 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 to appear before the Tribunal to give evidence and present arguments.

8. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. On 4 June 2020, the Tribunal wrote to the applicants detailing that as no comments were received by 2 June 2020, their hearing right had been lost. The Tribunal in the letter detailed that if they wished to make any comments to do so by 11 June 2020, after which time the Tribunal would be finalising the matter.

10. The Tribunal has not received any comments and has decided to proceed to decision without taking further steps to obtain the comments.

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

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 there is an approved nomination.

    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 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 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.

16. The nominator’s nomination application was refused by the Department and although a review application was lodged with the Tribunal, this review application was affirmed by the Tribunal. The applicants failed to provide any response to, or comment on this information. As the nomination application for the position to which the applicant’s Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.233(3).

17. Therefore, cl.186.233 is not met.

18. 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.

19. The Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second and third named applicants (the applicant’s spouse and child) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.