Singh (Migration)

[2023] AATA 881

Singh (Migration) [2023] AATA 881 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurbaj Singh
Mrs Manpreet Kaur
Miss Ekamjot Kaur

REPRESENTATIVE:  Mr Harmanjeet Singh (MARN: 1574954)

CASE NUMBER:  1837052

HOME AFFAIRS REFERENCE(S):          BCC2017/1351892

MEMBER:Amanda Mendes Da Costa

DATE:31 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 March 2023 at 8.17am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 Home Affairs on 7 December 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 April 2017. 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 (Cth) (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 Cook ANZSCO 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal (by telephone) on 29 March 2023 to give evidence and present arguments.

7. Although the applicants were represented in relation to the review, their representative did not participate in the hearing.

8. In making its decision, the Tribunal has considered the material in both the Departmental and Tribunal files.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl 186.233 of Schedule 2 to the Regulations.

    Nomination of a position

11. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

12. 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 reg 1.13A and reg 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.

13. The Tribunal notes that on 14 March 2023 it wrote to the applicant pursuant to s 359A of the Act, inviting him to comment on or respond to information which it considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.

14. The particulars of the information are :

    ·On 11 April 2017 Food & Soul Pty Ltd (the nominator) applied to the Department to nominate him for the position of Cook (ANZSCO 351411).

    ·On 7 November 2018 the application for approval of the nominated position made by the nominator was refused by the Department.  The nominator applied to the Tribunal for review of that decision.

    ·On 20 October 2020 the Tribunal determine that it did not have jurisdiction to hear the nominator’s application.  This means that the nomination relating to the position specified in the visa application has not been approved. 

15. The Tribunal advised the applicant the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in his visa application is the subject of an approved nomination.  The Tribunal further advised that if it relied on this information in making its decision, it may affirm the decision under review because he was not the subject of an approved nomination.  The applicant responded to this invitation (within the stipulated time) on 14 March 2023.

16. The Tribunal discussed the above information with the applicant at the hearing. He told the Tribunal that he commenced work as a Cook with the nominator in April 2017 and worked in a full-time capacity in the nominator’s fine dining restaurant until March 2020.  He further explained that his employment ceased as a result of government restrictions placed on the business as a result of the Covid-19 pandemic.  The applicant obtained part-time work until March 2022 when he obtained full-time employment as a Cook in a restaurant located in Darwin, Northern Territory.  The applicant explained that subject to his visa status, this  employment is of a permanent nature., depending on his visa status.

17. The applicant conceded that he is not the subject of an approved nomination by the nominator (or any other sponsor) for the occupation of Cook ANZSCO 351411.  However, he told the Tribunal that he is a diligent worker who has been prepared to relocate to another part of the country to obtain employment.

18. The Tribunal accepts that the cessation of the applicant’s employment with the nominator was due to restrictions placed on the business as a result of the Covid-19 pandemic and that he has shown initiative in  securing further full-time employment in the nominated position in Darwin.  However, based on the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements of cl 186.233.

19. 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.

20. Given its findings regarding the applicant, the Tribunal does not consider that the second and third named applicants meet the secondary requirements for the grant of Employer Nomination (Permanent) (Class EN) visas.

    DECISION

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

    Amanda Mendes Da Costa
    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.