SINGH (Migration)

[2018] AATA 2031

SINGH (Migration) [2018] AATA 2031 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RAJBIR SINGH
Mrs GAGANDIP KAUR
Master SHAZAADBIR SINGH

CASE NUMBER:  1702730

DIBP REFERENCE(S):  BCC2016/1747435

MEMBER:Hugh Sanderson

DATE:16 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in respect of the application of Shazaadbir Singh

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

Statement made on 16 April 2018 at 10:25am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Transport company manager – Not the subject of an approved nomination – Applicant’s son not in Australia at the time of the Department’s decision or at the time of the filing of the review application – No Jurisdiction for applicant’s son – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 347, 359A, 338
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

CASES
Hassan v MIBP [2106] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2017] FCAFC 105

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 31 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 16 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 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. This stream is designed for Subclass 457 visa holders who have worked for their 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 visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

   Background

6. The applicant is a citizen of India. He applied for the visa on the basis of his nomination by Pradeep Basker Australia Pty Ltd for the position of a transport company manager. The second named applicants are the applicant’s wife and child. They applied for their visas on the basis of being members of the family unit of a person who meets the primary criteria.

7. On 22 December 2016 the Department refused the nomination application of Pradeep Basker Australia Pty Ltd. As the nomination application had been refused, the delegate found that the applicant was not the subject of an approved nomination and therefore did not meet the criteria in cl.186.223(2). Accordingly, the application was refused. As the second named applicants were not members of the family unit of a person who met the primary criteria, their applications were also refused.

8. Both Pradeep Basker Australia Pty Ltd and the applicant lodged with the Tribunal applications for reviews of the decisions refusing the nomination application and the visa application.

9. The applicant’s son, Shazaadbir Singh, departed Australia on 29 September 2014. He returned to Australia on 10 January 2018 holding a Visitor visa. He was not in Australia at the time the Department issued the decision to refuse his application or at the time the review application was filed with the Tribunal.

   Information to the Tribunal

10. Pradeep Basker Australia Pty Ltd withdrew its application for a review of the decision to refuse its nomination application. On 23 February 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act noting that as the review application of Pradeep Basker Australia Pty Ltd had been withdrawn and finalised the applicant was not the subject of an approved nomination and therefore did not satisfy cl.186.223. The applicant was invited to comment on or respond to this information. The applicant responded on 8 March 2018 claiming that he had found another employer (KKS Transport Pty Ltd) who had now applied for approval of a nomination of him for the same position of transport manager.

11. The applicants appeared before the Tribunal on 16 April 2018 to give evidence and present arguments. The applicant’s agent who had been representing him ceased acting for them on 12 March 2018.

12. The Tribunal explained to the applicant the process under s.359AA of the Act. It explained that it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. If he required more time to comment on or respond to the information he could request an adjournment.

13. The Tribunal referred to the movement records of his son. These indicated that he was not in Australia at the time of the Department’s decision or at the time of the filing of the review application. As such, it appeared that the Tribunal did not have jurisdiction to consider his application. The applicant said that he would have to speak to his lawyer about this. He did not request an adjournment.

14. The Tribunal noted the applicant had provided documents which showed that KKS Transport Pty Ltd had applied on 2 March 2018 for approval of the nomination application. The Tribunal explained to the applicant that the issue before it was whether he was subject of an approved nomination. That nomination had to be for the position to which the application relates. As such, the relevant nomination did not relate to the later application for approval of a nomination filed by KKS Transport Pty Ltd.

15. The applicant said that he would have to consult his lawyer and appeal the decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is subject of an approved relevant nomination.

    Nomination of a position

18. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

19. 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.

20. The relevant position to which the application relates is the position stated in the applicant’s visa application. This relates to the nomination by Pradeep Basker Australia Pty Ltd (nomination transaction number EGOBEHUD7N). That nomination application was refused by the Department and the application for a review of that decision has been withdrawn. As such, the nomination application has not been approved and the application has been finalised.

21. The applicant has provided information that after the Tribunal wrote to him on 23 February 2018 that the relevant nomination application had been refused and finalised that he has found another employer, KKS Transport Pty Ltd, who has applied to the Department for approval of a nomination application.

22. As has been stated in several cases (see Singh v MIBP [2017] FCAFC 105, Kaur v MIBP [2017]FCCA 564,  and Hassan v MIBP [2106]FCCA 1049) the nomination relied on to satisfy cl.186.223 must be the nomination which had been made at the time of the visa application. The applicant is not able to change the nomination or rely upon a subsequent application for approval of a nomination by the same or a different employer.

23. As the nomination application of Pradeep Basker Australia Pty Ltd upon which the application was dependent was refused by the Department and the review application has now been withdrawn the applicant is not subject of an approved nomination. As the relevant nomination has not been approved, the applicant does not meet the criteria in cl.186.223.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream in this application. 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.

25. As the primary visa applicant does not meet the criteria for the grant of a Subclass 186 visa, the second named visa applicants are not members of the family unit of a person who meets the primary criteria and their application must also be refused.

    Jurisdiction of the application of Shazaadbir Singh

26. The applicant’s son, Shazaadbir Singh, was not present in Australia at the time of the Department’s decision to refuse the application or at the time the review application was filed.

27. The decision to refuse the applicant’s son the permanent visa is a reviewable decision under s.338(7A). That review application, however, may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made (s.347(3A)).

28. Both at the time the Department made the decision to refuse the application of Shazaadbir Singh and at the time the review application was made, Shazaadbir Singh was not in the migration zone. As such, the Tribunal does not have jurisdiction to consider the application of Shazaadbir Singh.

    DECISION

29. The Tribunal does not have jurisdiction in respect of the application of Shazaadbir Singh.

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

    Hugh Sanderson
    Member