Singh (Migration)

[2018] AATA 3904

Singh (Migration) [2018] AATA 3904 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navpreet Singh

CASE NUMBER:  1715666

HOME AFFAIRS REFERENCE(S):               BCC2016/4063389

MEMBER:Ian Berry

DATE:5 September 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 September 2018 at 10:39am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Marketing Specialist – nomination refused – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359C, 360, 363A

Migration Regulations 1994, Schedule 2 cl 186.223; rr 1.13A, 1.13B

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by the delegate of the Minister for Immigration on 10 July 2017 to refuse to grant the applicant’s Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (Act).

2. The applicant applied to the Department of Immigration for the visa on 2 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 (Regulations).The primary criteria must be satisfied by the applicant.  The applicant 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘marketing specialist’ (ANZSCO code 225113).  This stream is designed for Subclass 457 Visa holders who have worked for the employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl. 186.223 of Schedule 2 to the Regulations because the associated nomination was not approved.

6. The applicant appeared before the Tribunal on 1 August 2018 to give evidence and present his arguments.  He was represented by a migration agent and that representative did attend the hearing.

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 meets cl. 186.223. Does he have an approved nomination.

   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 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.

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. The applicant applied for the visa on the basis of a nomination lodged by Anne Bee Holdings Pty Ltd. The Department refused to approve the nomination and the nominator applied for the decision be reviewed. On 7 August 2018, the Tribunal affirmed the delegate’s decision.

12. On 16 August 2018, the above information was put to the applicant in a s.359A letter inviting the applicant to

13. On 16 August 2018, the Tribunal wrote to the review applicant pursuant to s.359  of the Act, inviting the review applicant to comment on the above information which is adverse as it meant he could not meet the requirements of cl.  186.223(2).

14. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 30 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

16. Therefore, cl.186.223 is not met.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. There are not any other claims made in respect of other visa streams. As the requirements that must be met by a person seeking the visa the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    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.