Singh (Migration)

[2020] AATA 1235

Singh (Migration) [2020] AATA 1235 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bhupinder Singh
Mrs Gursimrat Kaur
Miss Samreet Kaur
Master Gurshaan Singh

CASE NUMBER:  2001370

HOME AFFAIRS REFERENCE(S):          BCC2019/6356162

MEMBER:Mark Bishop

DATE:8 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination Scheme (sub class 186) visas.

Statement made on 08 April 2020 at 10:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 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 14 May 2019. 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 Direct Entry stream, to work in the nominated position of not disclosed in delegate’s decision.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 9 December 2019 the nomination lodged by P & M Catering Pty Ltd, being the nomination referred to in cl.186.233(1), was refused by a delegate of the Minister.

6. The applicant appeared before the Tribunal on 30 March 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered Migration Agent (MA).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   Nomination of a position

10. Clause 186.233 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 made as part of the current visa application.

11. In addition, this criterion also requires that:

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

12. In evidence to the tribunal the applicant advised he was aware there was no current nomination, the nomination application lodged by P & M Catering Pty Ltd had been refuse by a delegate of the Minister, the nomination application had been refused by a delegate of the Minister and he no longer worked for the nominator employer.

13. The applicant did not provide evidence demonstrating that he was the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233 of Schedule 2 to the Migration Regulations.

14. There is no evidence before the Tribunal that the applicant is the subject of a nomination approved by the Minister under r.5.19 as required by cl.186.233 of Schedule 2 to the Migration Regulations.

15. Hence the applicant in this review application does not meet cl.186.233 of Schedule 2 to the Regulations.

16. Therefore, cl.186.233 is not met.

    Secondary Applicants

17. The secondary applicants in this review application are members of the family unit of the review applicant in this review application.

18. As the secondary applicants are not members of the family unit of a person who holds a sub class 186 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.186.311 is not satisfied.

19. As cl.186.311 is not satisfied the Tribunal finds the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied. Therefore the Tribunal refuses the application by the secondary applicants for an Employer Nomination Scheme (sub class 186) visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination Scheme (sub class186) visas.

    Mark Bishop

    Member

    ATTACHMENT A

    186.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); and

    (b)in relation to which the declaration mentioned in paragraph 1114C(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 no more than 6 months after the Minister approved the nomination.