Singh (Migration)

[2019] AATA 2132

Singh (Migration) [2019] AATA 2132 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karnvir Singh
Mrs Pritam Kaur Gill
Miss Avneet Kaur

CASE NUMBER:  1707873

HOME AFFAIRS REFERENCE(S):           BCC2016/475952

MEMBER:Ian Berry

DATE:15 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 15 April 2019 at 9:40am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Cook – no approved nomination – nomination application withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 21 March 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (Act).

2. The applicants applied for the visas on 1 February 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 (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 Singh) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because Mr Singh did not meet cl.186.223(2) of Schedule 2 to the Regulations because his nominator had its nomination application refused.

6. The applicants appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The Tribunal received oral evidence from Mr Singh.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Singh has an approved nomination that has not been withdrawn.

   Nomination of a position

9. 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 Mr Singh. 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.

10. 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.

11. On 18 March 2019, the applicant’s nominator, Dadaar Enterprises Pty Ltd ATF Dadaar Unit Trust withdrew their application for review before the Tribunal. This was put to the applicant at the hearing. The applicant said he did not know of the withdrawal, and in the early part of the year was speaking with the nominator’s owner. In recent months, he had tried to contact that owner but without success.

12. Therefore, cl.186.223 is not met.

13. 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.

14. There has not been any claim made by Ms Kaur as the secondary applicant, that she meets the primary requirements for any of the visa streams. The Tribunal does not have before it any information to indicate that a position has been nominated in respect of Ms Kaur under any of the streams for the purposes of cl.186.223.

15. Mr Singh only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition scheme.  No claims have been made in respect of other visa streams.  As the requirements that must be met by a person seeking the visa in the aforementioned stream have not been made, the decision under review must be affirmed. 

16. Clause.186.311 requires that an applicant is a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that Visa.  As neither the first named applicant, nor any family member has satisfied the primary criteria for the grant of the Subclass 186 visa, I am not satisfied that cl.186.311 has been met.

17. Finally, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl.186.223(2) and thus cannot meet cl.186.223 as a whole.  Mr Singh therefore cannot be granted a Subclass 186 visa.

    DECISION

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

Ian Berry
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.