Sonar (Migration)

[2019] AATA 5696

Sonar (Migration) [2019] AATA 5696 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amit Kumar Sonar
Ms Anu Joshi

CASE NUMBER:  1819755

HOME AFFAIRS REFERENCE(S):          BCC2017/2116816

MEMBER:Katie Malyon

DATE:19 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2019 at 11:54 am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Accountant (General) – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 186.223

CASES

Hasran v MIAC [2010] FCAFC 40
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 Home Affairs on 20 June 2018 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 15 June 2017.  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).  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 criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

   Background

4. In this case, the first named applicant - Nepalese national Mr Amit Kumar Sonar - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Accountant (General) ANZSCO 221111 and thereby continue his employment with Phoenix Industrial Cleaning & Pest Management Pty Ltd (the Company), the sponsor of his Subclass 457 visa.

5. The delegate refused to grant the visas on the basis Mr Sonar did not meet cl.186.223 of Schedule 2 to the Regulations because of the Company’s nomination application had been refused.

6. The Tribunal conducted a review of the decision to refuse the applicants’ Subclass 186 visa application as a combined hearing with its related review of refusal of the Company’s nomination application (AAT File 1814504).  Mr Sonar and the Managing Director of the Company, Mr Ahmed Ghanem appeared before the Tribunal on 14 May 2019 to give evidence and present arguments.  The applicants and the Company were represented in relation to the review by the same registered migration agent, who also attended the hearing.

7. The Tribunal made a decision on 30 August 2019 to affirm the delegate’s decision not to approve the Company’s nomination in respect of the position of Accountant (General) ANZSCO 221111 for Mr Sonar.

8. On 4 September 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants that it had affirmed the Department’s decision to refuse the nomination application made by the Company in respect of Mr Sonar. 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.

9. The Tribunal’s letter to the applicants was sent to the representative who lodged their review application with the Tribunal and who appeared at the Tribunal’s hearing. The applicants were requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 18 September 2018.

10. The applicants have not commented on, or responded to, the Tribunal’s letter within the prescribed period. As they have 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, the applicants are 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 it must affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

12. Clause 186.223 of Schedule 2 to the Regulations, 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 same one that was the subject of the declaration made by the visa applicant that is required to be made as part of the Subclass 186 visa application.

13. 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.

14. The Company’s nomination application in respect of Mr Sonar was refused by the Department and that decision was affirmed by the Tribunal. Mr Sonar has failed to provide any response to, or comment on, this information as set out the Tribunal’s s.359A letter of 4 September 2019. Since the nomination application for the position to which Mr Sonar’s Subclass 186 visa application relates has not been approved it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

15. Mr Sonar 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.

16. The application of Ms Anu Joshi is based on her being a member of the family unit of a person who meets the primary criteria.  As Mr Sonar does not meet the primary criteria, Ms Joshi does not meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse the application of the second named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from Schedule 2 to the Migration Regulations 1994

    Part 186

    …
    
    

    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.

    oOOo