SINGH (Migration)

[2020] AATA 312

SINGH (Migration) [2020] AATA 312 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taranbir Singh
Mrs Rupinder Kaur
Miss Japneet Kaur Pannu
Master Kanwarbir Singh

CASE NUMBER:  1819354

HOME AFFAIRS REFERENCE(S):          BCC2017/1998368

MEMBER:Wan Shum

DATE:11 February 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 11 February 2020 at 3:38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant Manager – subject of an approved nomination – nomination application refused – 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 on 13 June 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 6 June 2017. 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.

3. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager. The related nomination was made by Sukhmeet Enterprise Pty Ltd (the nominator) on 6 June 2017.

4. The nomination was refused on 4 May 2018.

5. As a consequence, the delegate refused to grant the visa finding that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

6. Both the nominator and the applicant have sought review of the refusals, and were represented in relation to the review by the same registered migration agent.

7. The first named applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pawanjit Singh who appeared on behalf of the nominator.

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 nomination has been approved. 

10. This requirement is set out in clause 186.223. The version of cl.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.

11. 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.

12. On the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Restaurant Manager. Under the section ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

13. On 22 January 2020, the Tribunal affirmed the delegate’s decision not to approve the nomination.

14. The Tribunal wrote to the applicant, pursuant to s.359A of the Act, regarding this information on 23 January 2020. A response was due on 6 February 2020. The Tribunal received a request for an extension of time to provide a response at 3:55pm on that date. The representative advised that “the applicant is exploring his grounds for a reply and weighing his options. He needs some more time for that. Please grant a reasonable extension of the deadline to provide the response.” The Tribunal considered the request to extend the deadline but did not agree to the request. It considered that while he may wish to “explor[e] his grounds for a reply” and “weigh his options”, it was not clear how this would help him to  address the information contained in the letter that the nomination had not been approved and that it did not appear that he could meet the requirements of cl.186.223. The representative was informed that the Tribunal had not agreed to the request on 7 February 2020, but that it would consider any information that it received prior to making the decision. Nothing further has been received.

15. In the circumstances, as the nomination has not been approved, cl.186.223(2) is not met. Therefore, cl.186.223 is not satisfied.

16. 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. There is no evidence before the Tribunal that the other applicants are members of the family unit of a person who has been granted a Subclass 186 visa. Therefore, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    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.