Singh (Migration)

[2019] AATA 4060

Singh (Migration) [2019] AATA 4060 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dilpreet Singh
Mrs Harwinder Kaur

CASE NUMBER:  1726992

HOME AFFAIRS REFERENCE(S):           BCC2017/1962948

MEMBER:Susan Reece Jones

DATE:16 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2019 at 12:20pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Motor Mechanic – no approved nomination – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 360, 363A
Migration Regulations 1994, r 5.19, Schedule 2, cls 186.223, 186.311

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 13 October 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 2 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 (the applicant) is seeking the visa to work in the nominated position of ‘Motor Mechanic (General) 321211’ with CS Automotive Services Pty Ltd in the Temporary Residence Transition stream.  

5. On 8 August 2017, the delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the application for approval of the nominated position made by CS Automotive Services Pty Ltd (as nominator) was refused.

6.    As the nominator is not actively and lawfully operating a business in Australia, the Tribunal affirmed the decision of the Department on 21 June 2019.

7. On 19 July 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the review applicant to provide comments in response to the information about the nominator’s application refusal.

8.    The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 2 August 2019,  the Tribunal may make a decision on the review without taking further steps to obtain the comments. In addition, the review applicant was advised that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has 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 applicant is 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nomination of the position has been approved.

Other criteria

1. Clause 186.223 requires that the position to which application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. In addition, the criterion requires that nomination be approved.

2. The nomination of CS Automotive Services Pty Ltd was not approved because the applicant was not actively and lawfully operating a business in Australia, and hence, the Tribunal was not satisfied that nominator met the requirements in r5.19 of the Migration Regulations. Accordingly, cl.186.223 is not met.

3. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the 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 have not been met, the decision under review must be affirmed.

4. In relation to the second named applicant, Mrs Harwinder Kaur, the Tribunal must also affirm the decision not to grant the second visa in subclass 186 visa. This is because the Mrs Kaur does not meet cl.186.311(a) because she is not the member of the family unit of someone who satisfies the primary criteria for a subclass 186 visa. In addition, there is no evidence that Mrs Kaur meets the primary visa criteria in her own right.

DECISION

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

Susan Reece Jones
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(10); 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.