Singh (Migration)

[2019] AATA 868

Singh (Migration) [2019] AATA 868 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmeet Singh

CASE NUMBER:  1805182

HOME AFFAIRS REFERENCE(S):           BCC2016/3025976

MEMBER:Alan McMurran

DATE:7 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2019 at 6:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Minister of Religion – 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 23 February 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 September 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Minister of Religion.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 (3) of Schedule 2 to the Regulations because the applicant was not the subject of a nomination approved by the Minister.

6. The applicant was invited to appear before the Tribunal on 28 February 2019 to give evidence and present arguments. The applicant did not appear, and instead responded to the Tribunal invitation by email on 8 February 2019, stating that:

   “Dear Member,

   I understand that I do not meet visa criterion and AAT do not have authority to remit application back to immigration if I do not meet criterion.

   This application was lodged with intention to seek intervention from minister.

   Gurmeet 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 the applicant is the subject of a nomination which the Minister has approved.

   Nomination of a position

9. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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. The Tribunal has available for this review the information contained in the Tribunal’s file, and electronic documents from the Department’s file. Those documents include:

    ·the application for the visa and acknowledgement from the Department

    ·bridging visa notification

    ·the Department’s natural justice letter sent 30 November 2017 concerning the nomination refusal

    ·refusal notification with decision record dated 23 February 2018

    ·further bridging Visa notification

    ·Department record showing migration history since 7 August 2008 when the applicant arrived in Australia on a specialist TE visa subclass 428

    ·Tribunal natural justice letter dated 5 December 2018 requesting information in response to the decision to refuse the nomination, which was not the subject of an application for review

12. There is no information before the Tribunal (other than as set out above) and the applicant did not take up the opportunity to appear at the hearing to make oral submissions or provide further information. Although reference is made by the applicant in the email response to the Tribunal on 8 February 2019, to a request for Ministerial intervention, no details are available about such a request, if it has been made or if there is any response under consideration.

13. The Tribunal has not received any response to its letter of 5 December 2018, and a review of the Department’s file shows there was no response to the Department’s letter sent 30 November 2017.

14. According to the applicant’s history set out in the application to the Department, the applicant’s most recent employment in Australia was by the Sri Guru Singh Sabha Sikh Association, from 26 May 2014 to 12 September 2016. Prior to that since first coming to Australia in 2008, the applicant was also employed in India from 1 March 2003 to 4 July 2013 as a Minister of the Sikh religion, and in Canada from 25 October 2006 to 18 April 2007, also as a Minister.

15. There is no other information before the Tribunal about the current employment of the applicant or any proposed sponsorship for a direct entry nomination under regulation 187.23

16. The Tribunal finds on the information available that there is no nomination which has been approved by the Minister, or a nomination which has been refused and which is the subject of a review.

17. As the applicant is not the subject of an approved nomination and there is no information concerning any further employment or nomination, either under review or proposed, it would be futile for the Tribunal to consider a remittal of this matter to the Department. The Tribunal understands from the applicant’s email that he is aware of the failure to meet the criterion. The Tribunal has no role to play in any consideration by the Minister which might be contemplated and has no reason to make any recommendation or submission of its own in that regard, and with no information before it.

18. Consequently, the tribunal is satisfied that the applicant is not a person who is the subject of an approved nomination by the Minister and cl.186.233 is not met.

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

    DECISION

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

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; 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.