SONI (Migration)

[2020] AATA 2263

SONI (Migration) [2020] AATA 2263 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SHRIRAMCHANDRA HARSHADBHAI SONI
Mrs RUCHIBEN SHRIRAMCHANDRA SONI
Mr HARVI SONI

CASE NUMBER:  1725177

HOME AFFAIRS REFERENCE(S):          BCC2017/2253889

MEMBER:Karen McNamara

DATE:2 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 June 2020 at 2:28pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – refusal affirmed on review – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(A)

Migration Regulations 1994 (Cth), Schedule 2, cll 186.223(2), 186.311

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 (the delegate) on 27 September 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 June 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 (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 Mr Shriramchandra Harshadbhai Soni
   (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Transport Company Manager (ANZSCO 149413).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Shriramchandra Harshadbhai Soni
   to be the subject of an approved nomination. The delegate found that the associated nomination (lodged by JSW Transport Pty Ltd) was refused by a delegate of the Minister for Immigration and Border Protection on 9 August 2017.

6. The delegate also found that the second and third named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants applied to the Tribunal on 16 October 2017 for review of the delegate’s decision.

8. On 21 April 2020, Mr Shriramchandra Harshadbhai Soni appeared before the Tribunal via telephone to give evidence and present arguments on behalf of the applicants. The Tribunal hearing was scheduled as a combined hearing with the related nomination application (AAT Case file 1719752). 

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

10. Prior to the hearing the Tribunal attempted to contact Mr Jamil Wehbe who was noted as appearing on behalf of the nomination review applicant. The Tribunal was not successful in contacting Mr Wehbe. The Tribunal held the hearing for the applicant’s Subclass 186 visa application and took evidence from the applicant in the nomination matter. The Tribunal adjourned the nomination matter in order to contact Mr Wehbe.

11. Mr Wehbe did not respond to the Tribunal’s subsequent invitation to give evidence and present arguments at a resumption of the adjourned hearing of the nomination review on 28 April 2020. The nomination review application was dismissed by the Tribunal on 14 May 2020.

12. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

15. 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.

16. 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.

17. The applicant attended the hearing via telephone on the 21 April 2020. The Tribunal explained that, to meet cl.186.223, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

18. On the 14 May 2020, the Tribunal dismissed the nomination review application for approval of the nominated position, made by JSW Transport Pty Ltd in respect of the applicant. As the application for the nominated position has not been approved, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

19. On 14 May 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Migration Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s dismissal of the nomination review application for approval of the nominated position, made by JSW Transport Pty Ltd in respect to the applicant. The Tribunal explained that this was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has not been approved, cl.186.223(2) is not met.

20. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 28 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

21. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

22. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

23. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

24. There is no evidence before the Tribunal to indicate that the second or third named applicants meet the primary requirements for grant of the visa.

25. In relation to the second named applicant Mrs Ruchiben Shriramchandra Soni and the third named applicant Mr Harvi Soni, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicants, Mrs Ruchiben Shriramchandra Soni and Mr Harvi Soni, as a member of Mr Shriramchandra Harshadbhai Soni’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second and third named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

26. The applicants have 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

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

    Karen McNamara
    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.