Singh (Migration)

[2018] AATA 3567

Singh (Migration) [2018] AATA 3567 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranvir Singh
Mrs Navpreet Navpreet
Ms Ashmin Kaur

CASE NUMBER:  1618544

HOME AFFAIRS REFERENCE(S):           BCC2015/3418222

MEMBER:Bridget Cullen

DATE:16 August 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 16 August 2018 at 3:02pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cls 186.233(3), 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 18 October 2016 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 19 November 2015. 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 Direct Entry stream, to work in the nominated position of Project Administrator.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by GoGlobal Education Pty Ltd, being the nomination referred to in paragraph 186.233(1) was refused by the Department.

6. The first named applicant, Mr Ranvir Singh, appeared before the Tribunal on 14 February 2018 to give evidence and present arguments. The hearing was conducted jointly with that of the related nomination application by GoGlobal Education Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. 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.

9. 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.

10. On 26 July 2018, the Tribunal wrote to the applicant under section 359A of the Act. After setting out the background to the application the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited the applicant to comment upon the Tribunal’s decision to affirm the refusal by the Department of the nomination by GoGlobal Education Pty Ltd. The Tribunal’s decision was made on 24 July 2018.

11. The Tribunal’s letter explained that:

    This information is relevant as it suggests you do not meet cl. 186.223(2), which
    requires that the nomination be approved. As a result, the secondary applicants may not meet cl. 186.311. If you do not meet these clauses, the Tribunal must affirm the decision to refuse your visa applications.

12. The Tribunal required that any comments or response be provided by 9 August 2018.

13. On 3 August 2018, the applicant requested an extension of time to respond to the Tribunal’s s359A request. The applicant requested an extension of time to respond for the following reason:

    “I have been advised by previous email about the refusal of Nomination at Go Global Pty Ltd. My employer Jaspal Singh Sandhu also have contacted me and advised that he will be seeking Judicial help to review the matter.

    He is currently overseas for a business meeting and will be speaking to his lawyers to proceed in federal court. he will make a decision once he will be back in the country. I would like to request a extension on refusal of our Visa until he has finalised the matter.

    I have attached copy of his boarding passes to justify his departure. i assume he will be in-touch with AAT once he will be back in country. I once again request you to consider my Extension till my employer is back in the country.”

14. GoGlobal’s decision to appeal is not relevant to the decision that the Tribunal must make in the review now before it. Moreover, the director of GoGlobal being overseas is not an adequate basis to extend the time for the visa applicant to respond to the Tribunal’s request for information in this review. There are no circumstances set out in the applicant’s request for an extension of time which actually relate to the visa application review that is now before the Tribunal. Rather, the request relates to the earlier determined nomination refusal. For this reason, the Tribunal refused to extend the time for the applicant to respond to the s359A letter.

15. The applicants have not responded to the Tribunal’s s359A request for information.

16. As the Department’s decision to refuse the nomination application by GoGlobal Education Pty Ltd, being the nomination referred to in cl.186.233(1), has been affirmed by the Tribunal, the first named applicant, Mr Ranvir Singh, does not meet the requirements of cl.186.233.

17. 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.

    The Secondary Applicants

18. The second and third-named applicants were included in the visa application as accompanying family members and secondary applicants.

19. As secondary applicants, the second and third-named applicants must meet the requirements of clause 186.311, which relevantly requires each of them to be 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 the visa.

20. As the applicant does not satisfy the primary criteria for a subclass 186 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for subclass 186 visas.

    DECISION

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

    Bridget Cullen
    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.