Singh (Migration)

[2019] AATA 5351

Singh (Migration) [2019] AATA 5351 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kulwinder Singh
Mrs Poonam Punia
Miss Gazleen Anttal

CASE NUMBER:  1829646

HOME AFFAIRS REFERENCE(S):          BCC2017/4313564

MEMBER:Phoebe Dunn

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa.

The Tribunal has no jurisdiction in relation to the second and third named applicants.

Statement made on 25 November 2019 at 11:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of approved nomination – employer’s position nomination refused – refusal affirmed on review – no response to Tribunal’s s 359A letter – member of a family unit – secondary applicants outside migration zone at relevant times and have not re-entered – decision under review affirmed for first applicant, no jurisdiction in relation to second and third applicants

LEGISLATION

Migration Act 1959 (Cth), ss 65, 338(7A), 347(3A), 359A, 359C(1), 363(1)(b), 363A,

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311(a)

CASES

Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

Singh v Minister for Immigration and Border Protection [2014] FCCA 1403

Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 25 September 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 16 November 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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘Cook’ (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination made by Anttal & Sandhu Pty Ltd, being the nomination referred to in r.186.223(1), was refused by a delegate of the Minister on 7 August 2018, and as such there was no approved nomination.

6. On 24 August 2018, the nominator sought a review of the decision to refuse the nomination application.  On 1 November 2019, the Tribunal affirmed the decision of the delegate.

7. On 7 November 2019, the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response from the applicant, be the reason, or part of the reason, for affirming the decision under review, or to seek additional time to comment on or respond to the information, as follows:

   a.The particulars of the information were that the application for approval of the nominated position made by Anttal & Sandhu Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.  The nominator sought a review of that decision but it was affirmed by the Tribunal on 1 November 2019.  This means that the nominator’s application for the nominated position has not been approved;

   b.This information is relevant to the review because it is a requirement for the grant of the Subclass 186 visa that the position specified in the applicant’s visa application is the subject of an approved nomination; and

   c.If the Tribunal relies on the information in making its decision, the Tribunal may find that the position specified on the applicant’s visa application is not the subject of an approved nomination, and this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

8. The applicant was invited to comment on or respond to the information in writing, or to request an extension of time within which to provide comments or respond, by 18 September 2019. The applicant was advised that should the Tribunal not receive any comments or response, or a request for an extension of time within which to comment or respond, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information, and that the applicant would lose any entitlement the applicant may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. As at the date of this decision, the Tribunal has not received comments or a response to its letter or a request for an extension of time within which to comment or respond.

10. The Courts have confirmed that where an applicant fails to provide the requested comments or information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing[1].  Accordingly, as the applicant failed to comment on or respond to the information within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40.

11. The Tribunal has given consideration to whether it should exercise its discretion under s.359C(1) to take further steps to obtain a comment or response from the applicant.  The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements of cl.186.223(2) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

12. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that he is the subject of an approved nomination, and that this information has not been forthcoming.  In these circumstances, the Tribunal has decided to make a decision on the review without taking further action to obtain the applicant’s views on the information in accordance with s.359C(2) of the Act.

13. The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to comment or respond.

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

15. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.186.223(2) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

16. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information to demonstrate that he is the subject of an approved nomination, and that this information has not been forthcoming.  Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

17. The applicants were represented in relation to the review by their registered migration agent, Ms Ushass Panicker.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

20. 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.

21. 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 of the Regulations); 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.

22. On 1 November 2019, the Tribunal affirmed the delegate’s decision to refuse the nomination application by lodged by Anttal & Sandhu Pty Ltd in respect of the applicant.  Accordingly, at the time of this decision, the applicant is not the subject of an approved nomination as required under cl.186.223(2).

23. Therefore, cl.186.223 is not met.

24. 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.

25. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.186.311.

26. Further, in relation to the secondary applicants the Tribunal notes that both applicants were outside the migration zone when the application for a Subclass 186 visa was lodged with the Department on 16 November 2017, when the delegate made the decision in relation to the application that is the subject of this review on 25 September 2018, and when the review of the delegate’s decision to refuse the Subclass 186 visa was lodged with the Tribunal on 10 October 2018.  A review of the Department’s records indicate that the secondary applicants departed the migration zone on 25 September 2017 and have not re-entered the migration zone since that date.

27. The Tribunal notes that it is a requirement of s.347(3A) that in relation to decisions covered by s.338(7A) (where a non-citizen made an application for a visa while outside the migration zone), an application for review can only be made by a non-citizen who is both physically present in the migration zone at the time the decision was made, and at the time the application for review of that decision is made.  Accordingly, the Tribunal finds that the Tribunal has no jurisdiction to review the decision relating to the secondary applicants.

    DECISION

28. The Tribunal affirms the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa.

29. The Tribunal has no jurisdiction in relation to the second and third named applicants.

    Phoebe Dunn
    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.