Singh (Migration)

[2018] AATA 3437

Singh (Migration) [2018] AATA 3437 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karamjeet Singh
Mrs Bhupinder Kaur
Miss Gurgiven Sakhi Dhull

CASE NUMBER:  1700404

HOME AFFAIRS REFERENCE(S):           BCC2016/1849929

MEMBER:Stavros Georgiadis

DATE:6 August 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 6 August 2018 at 5:24pm

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), s 65
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 6 January 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 26 May 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 the Temporary Residence Transition stream, to work in the nominated position of Transport Company Manager (ANZSCO 149413) in the sponsor employer’s business (as sole proprietor).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations as the application for a nominated occupation in relation to the applicant had not been approved.

6. The applicants appeared before the Tribunal on 2 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lakhvir Singh (as sole proprietor) for the employer sponsor.  The Tribunal heard both related matters 1622280 and 1700404 in a combined hearing.

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 the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet the criteria for the grant of a Subclass 186 visa which are set out in Schedule 2 to the Migration Regulations 1994.

   Nomination of a position

10. 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.

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. The Tribunal notes that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is also satisfied on the documentary and oral evidence before it, that the position to which the application relates is the position nominated by Lakhvir Singh (as sole proprietor) in an application for approval that seeks to meet the requirements of sub-paragraph 5.19(3), and is in relation to which the applicant has been identified in the nomination as the relevant Subclass 457 visa holder for the position under cl.186.223(1). 

13. The Tribunal notes the written submissions and further information made under cover letter of 3 August 2018 provided following the hearing held on 2 August 2018 of related matters 1622280 and 1700404.  No reference to the employment contract dated 10 May 2016 was raised at the combined hearing when discussing concerns over the terms and conditions of the applicant’s employment contract signed on 30 October 2013. On 2 August 2018, the Tribunal finalised its decision in case-file number 1622280 to affirm the decision under review in respect of the nomination under r.5.19 relating to the nomination refusal. At the hearing the Tribunal put to the applicants that without an approved nomination they would not meet necessary criteria to satisfy cl.186.223 (specifically cl.187.223(2)) for the grant of the visas and that the applications would, on that basis, be unsuccessful in respect of all applicants. The Tribunal invited the applicant to comment on, or respond to, the information that where a decision had been made by the Tribunal to refuse the nomination, this would be the reason or part of the reason, for affirming the decision that is under review.  The Tribunal would also consider additional time to comment on, or respond to, the information and that the Tribunal could adjourn the review if it considered the applicants reasonably needed additional time to comment on, or respond to, the information.   

14. The applicant did not require additional time to comment or respond. The applicant conveyed to the Tribunal that the applicants understand and accept that in circumstances where there is no nomination approved, it would not be open for the visa applications to be successful as approval of the nomination is one of the requirements for the grant of the 186 visas.

15. Having considered the available evidence before it discussed, the Tribunal is satisfied that the position of Transport Company Manager (ANZSCO 149413) is the subject of the relevant r.5.19 nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.186.223(2). The Tribunal finds that the nomination of the position to which the application relates is not approved.

16. As cl.186.223(2) is not satisfied, cl.186.223 is therefore, not met.

17. 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 in respect of all applicants as members of the same family unit as the primary applicant.

    DECISION

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

    Stavros Georgiadis
    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.