Singh (Migration)

[2018] AATA 5591

Singh (Migration) [2018] AATA 5591 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lakhwinder Singh
Mrs Balwinder Kaur

CASE NUMBER:  1715708

HOME AFFAIRS REFERENCE(S):           BCC2016/4191534

MEMBER:Ian Berry

DATE:9 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 09 October 2018 at 12:59pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – absence of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.233, 186.311

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 6 July 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 12 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO code 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 in respect of the primary applicant and cl.186.311 in respect of the secondary applicants. The reasons were, with respect to the primary applicant, he neither an approved nomination nor a nomination pending a decision. In respect of the secondary applicants, because they did not have a nominee who satisfied part 186 of the regulations, they did not qualify for a visa.

6. The applicants appeared before the Tribunal on 2 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.223 of the second Schedule to the Regulations. 

   Nomination of a position

10. Cl.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.

11. 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.

12. Pursuant to s. 359A of the Act, the Tribunal asked the applicant questions as to whether he had or does have, or had, a nominator for the position of cook where he is identified as the nominee.  The Tribunal received evidence from the applicant of his not having a nominator and still continues to work for the employer whose nomination was refused and which identified the applicant as the nominee.  The Tribunal then advised the applicant that information of his not having a nominator because of the refusal of his employer’s nomination and there is not a pending nomination which he is identified, subject to his comments or response, may be a reason or part of reason for affirming the decision under review to refuse to grant his 186 visa application.

13. The applicant advised that he neither had a nomination application of which he is identified as the nominee nor a nomination in which he is identified, which is pending, and otherwise not withdrawn.  

14. The Tribunal advised the applicant, on the evidence given by him, meant he could not succeed with his visa application for the reasons explained to him – he must have either a nomination approval or a nomination application which has not been withdrawn. 

15. Therefore, cl.186.223 is not met.

16. 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.

17. The secondary applicants cannot satisfy cl. 186.311 of the Second Schedule by reason of the primary applicant not securing an approved nomination where he is named as the nominee.

    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.