SINGH (Migration)

[2019] AATA 1188

SINGH (Migration) [2019] AATA 1188 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harvir SINGH
Miss Manender Kaur Harbhajan
Miss Gurmehak KAUR KHINDA

CASE NUMBER:  1800377

HOME AFFAIRS REFERENCE(S):           BCC2016/2223884

MEMBER:Alan McMurran

DATE:1 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2019 at 2:52pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – subject of an approved nomination – nomination application refused by Department delegate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 December 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 30 June 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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of customer service manager for Sardar Pty Ltd.

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 applicant was not the subject of a nomination approved by the Minister.

6. The applicants were invited to appear before the Tribunal in a multi-application hearing list on 28 February 2019. The applicants had provided a mobile phone number. On the morning of the hearing, the Tribunal attempted to contact the applicants on the number provided, before commencement of the hearing at 9:30 AM, and again a further three attempts were made during the course of the hearing. On each occasion, the telephone number rang out and responded with only a voice message. The Tribunal was unable to successfully contact the applicants on the number provided. The applicants did not appear in person in response to the hearing invitation.

7. The Tribunal had sent a letter to the applicants on 5 December 2018 requesting information under section 359 of the Act. The applicant was requested to provide evidence in response by 19 December 2018.

8. The Tribunal letter set out in part as follows:

   “Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.”

9. The Tribunal did not receive any further information in response to that letter either from the applicants or their representative.

10. On 4 February 2019, the Tribunal sent the applicants an invitation for a hearing, and again invited the applicants to provide any material or evidence at least seven days before the hearing date. The letter sets out in part the following:

    “If you are not able to participate in this hearing, you need to advise me as soon as possible. Please note that we will only change the state is satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not participate in the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”

11. A check of the Tribunal’s record indicates there was no request to change the scheduled hearing date or any adjournment request or any extension of time request. The Tribunal has therefore elected to proceed with a decision in the matter on the basis of the information presently before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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

14. 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.

15. 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

    Consideration and findings

16. The Tribunal has available to it for consideration the Tribunal’s file and electronic records from the Department’s file.[1] In this review, the Tribunal has included consideration of the applications by the second and third named applicant’s, as members of the family unit of the applicant.

    [1] BCC2016 2223884

17. The applicant is an Indian citizen who came to Australia as a student in May 2009. His partner, the first named applicant, arrived in Australia on 21 February 2013. The third named applicant is their two-year-old daughter, born on [date].

18. The applicant was offered an employment contract for the position of customer service manager by the nominator in writing on 29 June 2016. Prior to that, the applicant had worked in Australia for Gurnav Pty Ltd from June 2009 to April 2010, and then as a labourer for Dream Safe Recycling from April 2010 until February 2011. He worked in Victoria for Tradelink Gas Solutions from June 2011 to January 2012 in customer service, and as a customer service attendant for Metro petroleum from September 2015 until June 2016. The applicant commenced work for the nominator on 1 March 2014, as a customer service manager. The applicant has obtained qualifications from the Melbourne Institute of Training and Technology, with an AQF certificate III and IV in Business.

19. The Tribunal does not have before it information from the nominator, however notes that on 14 November 2017, the nomination lodged on behalf of the applicant for the position of customer service manager was refused by the Minister. The Tribunal also does not have before it any more recent information from the applicants concerning current employment or any other substantive visa application which might be underway. There is also no record of the decision against the nominator being subject to a review. As indicated above, the Tribunal did not receive any further information in reply to its letter of 5 December 2018, which clearly informs the applicant that without an approved nomination or pending review of a decision to refuse the nomination, the decision to refuse the visa must be affirmed.

20. The Tribunal finds it would be futile in such circumstances without an approved nomination or an outstanding review application, to remit the matter to the Department.

21. The Tribunal finds that the applicant is the person nominated in an application for the position of customer service manager. The Tribunal is satisfied that the nomination application was refused by a delegate of the Minister on 14 November 2017, which refusal is not the subject of a review sought by the nominator. As a result, the applicant is not the subject of a nomination which has been approved and the visa application related to that nomination must fail, and cl.186.223 is not met.

    Secondary applicants

22. The Tribunal is satisfied that the secondary applicants are not the members of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa and cl. 186.311 is not met.

23. As this is a criterion that must be satisfied at the time of decision being made on the application, the secondary applicants do not meet the criteria for the grant of the visa.

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.

    DECISION

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

    Alan McMurran
    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.