SINGH (Migration)

[2019] AATA 4701

SINGH (Migration) [2019] AATA 4701 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SARVJEET SINGH
Mrs DOLLY
Mr AYAAN SINGH VIRK

CASE NUMBER:  1721338

HOME AFFAIRS REFERENCE(S):           BCC2016/4416875

MEMBER:Karen McNamara

DATE:11 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2019 at 9:51am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – employer’s nomination application refused – applicant not subject to approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223(2)

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 1 September 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 31 December 2016. 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 Sarvjeet Singh is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator (ANZSCO 511112).

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations because on 18 July 2017 the nomination lodged by Randhawa Roadways Pty Ltd, was refused by a delegate of the Minister for Immigration and Border Protection.

6. The applicants applied to the Tribunal on 11 September 2017 for review of the delegate’s decision.

7. The applicants appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

11. 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.

12. 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.

13. The applicants attended the hearing on the 4^th July 2019. The Tribunal explained that in order to meet cl.186.223, the first named applicant must be subject of an approved nomination.

14. Mr Singh told the Tribunal that he had worked hard for the nominating business and that it was through no fault of his own doing, that he and his family found themselves in the situation where there is no approved nomination. Mr Singh worked for the nominator for over four years until the business ceased to operate. Mr Singh claims that he belongs to a poor family and cannot afford to return to India and that he and his wife want their young child to have a future in Australia.

15. Mr Singh’s wife, Mrs Dolly supported her husband’s claims and told the Tribunal that her husband had worked with the nominator for four years and that the family were struggling to cope with the situation of uncertainty about their future in Australia. The applicants told the Tribunal that the stress of the situation was impacting on their ability to give time to their young child and that Mrs Dolly was depressed. 

16. The Tribunal acknowledges the dismay of the applicants and has sympathy for their situation; however, the Tribunal must apply the legislation as it stands. As explained to the applicant on numerous occasions throughout the hearing, the Tribunal must apply the law. 

17. There is no evidence before the Tribunal to support that the first named applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

18. At the hearing the applicant’s migration agent submitted that at the time of application to the Department and the time of lodging the review application with the Tribunal, the company was operating.  Had his client not experienced delays in the processing of the initial application and the subsequent review application, the agent believed that his applicant would have succeeded with his visa application. The Tribunal acknowledges that the delay in having the matter heard is unfortunate and may have impacted on the applicant however this does not overcome the fact that the nominator has ceased to operate as a business and that the applicant is not subject of an approved nomination.

19. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore Mr Singh does not meet cl.186.223(2) of Schedule 2 to the Regulations.

20. Therefore, as the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 is not met.

21. There is no evidence before the Tribunal to indicate that the second and third named applicants meet the primary requirements for grant of the visa.

22. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the secondary applicants Mrs Dolly and Mr Ayaan Singh Virk as members of      Mr Singh’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second and third named applicants do not satisfy cl.186.311.

23. The applicants have 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.

24. The Tribunal further notes the Agent’s request that the Tribunal afford consideration to his clients’ financial situation in so far as they cannot afford to return to India and that the Tribunal allow them to apply onshore for a subclass 482 or alternate suitable visa. Whilst the Tribunal acknowledges the Agent’s submission, the Tribunal has no power to permit the applicants to remain in Australia to apply for another visa. This is a matter for the Department and the applicant should seek advice from the Department in regard to their eligibility and options to remain in Australia.

    DECISION

25. 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.