SINGH (Migration)

[2018] AATA 3548

SINGH (Migration) [2018] AATA 3548 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SUKHVIR SINGH
Mrs LAKHVIR KAUR
Ms AVLEEN KAUR

CASE NUMBER:  1703481

HOME AFFAIRS REFERENCE(S):           BCC2016/529627

MEMBER:Hugh Sanderson

DATE:13 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2018 at 12:46pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition 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, 376
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 186.223(2)

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 27 February 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 4 February 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 transport company manager.

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

   Background

6. The applicant applied for the visa on the basis of his employment as a transport company manager for his sponsor, Tastrans Pty Ltd. The second named applicants have applied for the visa on the basis of being members of the family unit of the applicant.

7. The nomination application of Tastrans Pty Ltd was refused by the Department on 16 January 2017. As the nomination application was refused, the delegate found the applicant was not the subject of an approved nomination and therefore did not meet the criteria in cl.186.223(2) and refused the application.

8. Tastrans Pty Ltd applied for a review of the decision to refuse the nomination application. After a hearing before the Tribunal, the Tribunal issued a decision on 22 May 2018 affirming the decision to refuse the nomination application. On 25 May 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act noting the Department’s decision to refuse the nomination application of the sponsor had been affirmed by the Tribunal and, as such, the applicant was not the subject of an approved nomination. As such, the applicant did not meet the criteria in cl.186.223 and this would be a reason to affirm the decision under review.

9. The applicant’s agent made a series of submissions to the Tribunal where it was acknowledged that the Tribunal could not make a favourable finding in the review of the Department’s decision without an associated nomination that had been positively determined. It was stated that Tastrans Pty Ltd had appealed against the decision of the Tribunal to the Federal Circuit Court on 28 June 2018 and therefore no decision should be made by the Tribunal until after that appeal had been finalised.

10. The applicants appeared before the Tribunal on 10 August 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

11. The applicant was put on notice that the Department had issued a certificate under s.376 of the Act in respect of information received from an anonymous source about the applicant. As the information was not relevant to the issue before the Tribunal, no weight was placed on this information in the decision of this matter. No issue was raised by the applicants or their agent as to the certificate.

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 subject to an approved nomination.

    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

    ·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.

16. The nomination application of the applicant sponsor, Tastrans Pty Ltd, was refused by the Department and that decision has now been affirmed by the Tribunal on review. Although the Tribunal’s decision may be subject to a pending appeal before the Federal Circuit Court, at the time of this decision the applicant is not the subject of an approved nomination.

17. The Tribunal has considered the application to postpone or delay any decision on the current application pending the outcome of the appeal by the applicant’s sponsor, Tastrans Pty Ltd. The Tribunal does not accept that it is appropriate to await the outcome of any appeal lodged by Tastrans Pty Ltd in respect of the decision to refuse the nomination application. The Tribunal does not have any information before it on the basis on which it is claimed that jurisdictional error was made in the decision to affirm the Department’s refusal of the nomination application of Tastrans Pty Ltd. The outcome of the appeal by Tastrans Pty Ltd is speculative and, due to the workload of the Federal Circuit Court, there is likely to be considerable delay in any finalisation of that appeal when assessing the current application. Accordingly, the Tribunal does not accept that it is appropriate to delay making a decision in the current application until the finalisation of the appeal by Tastrans Pty Ltd.

18. At the time of this decision, the applicant is not the subject of an approved nomination. Therefore, cl.186.223 is not met.

19. 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.

20. The applications of the second named applicants are based on being members of the family unit of a person who meets the primary criteria. As the first named applicant does not meet the primary criteria, the second named applicants do not meet the criteria for the grant of the visa. Accordingly, the Department’s decision to refuse the applications of the second named applicants must also be affirmed.

    DECISION

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

    Hugh Sanderson
    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.