SINGH (Migration)

[2020] AATA 1240

SINGH (Migration) [2020] AATA 1240 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SURINDERPAL SINGH
Mrs MANJIT KAUR
Mr SANAMPREET SINGH
Miss HARSIMARANJIT KAUR

CASE NUMBER:  1834503

HOME AFFAIRS REFERENCE(S):          BCC2017/2291508

MEMBER:Karen McNamara

DATE:14 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 April 2020 at 5:36pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 16 November 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 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 (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 Surinderpal Singh (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The decision record provided to the Tribunal by the applicant, records that on the 16 November 2018, the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required Mr Surinderpal Singh to be the subject of an approved nomination. The delegate found that the nomination lodged by Rose View Corporate Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 17 October 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, third named and fourth named applicants could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311) requiring them 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 23 November 2018 for review of the delegate’s decision.

9. On 3 March 2020, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 9 April 2020 at 10:00 am, as one of several cases to be heard concurrently.

10. On 3 March 2020, the applicant confirmed his attendance at the scheduled hearing of 9 April 2020.

11. On 10 March 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. 

12. The information related to information before the Tribunal that shows the nominator is no longer trading. Information from the Australian Securities & Investments Commission (ASIC) register shows that Rose View Corporate Pty Ltd was deregistered on 3 November 2019. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

13. The Tribunal explained in its letter of 10 March 2020, that this information is relevant because it suggests that the nominated position is not available to the applicant. If the Tribunal relies on this information together with other evidence before it, it may not be satisfied under r.186.223(4) that the position is still available to the applicant and further under r.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

14. The Tribunal’s letter of 10 March 2020 additionally stated the following;

    ‘An invitation to attend a scheduled hearing was sent to you on 3 March 2020.

    Please note, however, that if you do not respond to this letter within the stated
    or any extended timeframes granted, you will lose your right to appear before
    the Tribunal to give evidence and present arguments relating to the issues
    arising in relation to the decision under review and the hearing will be cancelled.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 24 March 2020. If the comments
    or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 24 March 2020, you may
    ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 24 March 2020 and you must
    state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.’

15. The invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by       24 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

16. On 23 March 2020, the Tribunal received a request from the applicants’ representative seeking an extension of ‘at least 4 weeks” to respond to the Tribunal’s invitation of 20 March 2020.

17. On 24 March 2020, the Tribunal advised the applicants that their response should be received by the Tribunal by 9 am 25 March 2020.

18. On 24 March 2020 the applicants by way of submission advised the Tribunal as follows;

    ‘Respected Member,

    Thanks for giving me an opportunity to comment on the information and extending the timeframe. When I initially lodged the 186-visa application, sadly the nomination application was refused and there was no support form[sic] ROSE VIEW Corporate Pty Ltd then. I wasn’t in a position to comment on the refusal during my visa processing and as a result, my 186-visa application was also rejected.

    AS the AAT proceedings are going on, the owners of the ROSE VIEW Corporate Pty Ltd decided to close the business and I have no prior knowledge regarding it. There is nothing much I can do as it is the decision made at the higher level and I am no part of it. When applied, the position available was genuine and I have the necessary skills to work as a chef at a restaurant. I believe that I will be eligible for grant of 186-Visa application.

    Thank you,

    Surinderpal Singh

    24/03/2020’

    Case Number:

19. Mr Surinderpal Singh represented the applicants before the Tribunal on 9 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

20. 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 applicant was given a fair opportunity to give evidence and present arguments.

21. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

24. 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.

25. 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.

26. At the hearing, Mr Singh told the Tribunal that what he said in his submission was correct and that he was now working for another employer willing to nominate him for a visa.

27. The Tribunal has considered Mr Singh’s evidence and finds that there is no evidence before the Tribunal to support that the applicant’s application is subject to a nomination that has been approved and has not subsequently been withdrawn.

28. 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.

29. 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.

30. There is no evidence before the Tribunal to indicate that the second named applicant, third named applicant or fourth named applicant meets the primary requirements for grant of the visa.

31. In relation to the second named applicant Mrs Manjit Kaur, the third named applicant Mr Sanampreet Singh and fourth named applicant Miss Harsimaranjit 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 applicants, Mrs Manjit Kaur, Mr Sanampreet Singh and Miss Harsimaranjit Kaur as a member of Mr Surinderpal Singh’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

32. 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.

    DECISION

33. The Tribunal affirms the decision 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.