Singh (Migration)

[2018] AATA 1528

Singh (Migration) [2018] AATA 1528 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh

CASE NUMBER:  1516878

DIBP REFERENCE(S):  BCC2014/145659

MEMBER:Katie Malyon

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 10:26 am

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, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 186.223(2)

CASES
Singh v MIBP [2017] FCAFC 105
Hasran v MIAC [2010] FCAFC 40

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 1 December 2015 to refuse to grant the applicant, Mr Jatinder Singh, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Singh applied for the visa on 13 June 2014.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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).  Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, Mr Singh is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator ANZSCO 511112.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past 2 years and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because Mr Singh did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination lodged by his sponsor, Security International Services Pty Ltd (the Company), was refused by the Department and therefore Mr Singh was not the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Regulations.

6. By way of background, the Company separately sought review of the Department’s refusal of its nomination application in related matter number 1514863.  The Tribunal made a decision on 19 March 2018 to affirm the Department’s decision not to approve the Company’s nomination in respect of the position of Program or Project Administrator for Mr Singh.

7. On 23 March 2018, the Tribunal wrote to Mr Singh pursuant to s. 359A of the Act inviting him to comment on or respond to information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed Mt Singh that it had affirmed the decision of the Department to refuse the nomination application made by the Company in respect of him. As a result, the position to which his Subclass 186 visa application relates could not meet criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 this is a ‘once off’ process. The Tribunal noted that the Court in that case observed that even a new nomination in respect of the same position made by the same employer could not be relied upon because the new nomination would not be the one in relation to which Mr Singh had made the declaration that was required to be made as part of his visa application. 

8. The Tribunal’s letter to Mr Singh was sent to the representative who lodged his review application with the Tribunal.  Mr Singh was requested to provide any comments or response to the information in the Tribunal’s letter on or before 6 April 2018.

9. Mr Singh’s representative responded to the Tribunal on 6 April 2018. He informed the Tribunal that he has no instructions from his client in relation to any of the matters raised in the Tribunal’s s.359A letter of 23 March 2018. In the circumstances, Mr Singh has not commented on or responded to the Tribunal’s letter within the prescribed period.

10. As the review applicant has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Singh is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. Clause 186.223 requires that, for applicants in the Temporary Residence Transition stream, the position to which their 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. It is also a requirement that the Minister has approved the nomination.

13. The Company’s nomination application was refused by the Department and that decision was affirmed by the Tribunal. Mr Singh has failed to provide any response to, or comment on, this information. As the nomination application for the position to which Mr Singh’s Subclass 186 visa application relates has not been approved it follows that Mr Singh does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

14. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

15. Mr Singh 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.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member