Soni (Migration)

[2018] AATA 5775

Soni (Migration) [2018] AATA 5775 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Komal Nipun Soni
Mr Nipun Jitendrakumar Soni
Ayana Soni

CASE NUMBER:  1720662

HOME AFFAIRS REFERENCE(S):           BCC2017/434997

MEMBER:Ian Berry

DATE:14 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 December 2018 at 2:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 360
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.233, 186.311

CASES
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 17 August 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (“Act”).

2. The applicants applied for the visas on 2 February 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 (“applicant”) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.   

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the applicant did not have a valid nomination.

6. The applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant Ms Soni. 

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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 applicant meets cl.186.233(2) of Schedule 2 to the Regulations.

   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 or six months after the nomination of the position was approved.

12. The applicant applied for her EN 186 visa on the basis of a nomination lodged by Blue Gulabi Pty Ltd as trustee for the Blue Gulabi Family Trust.  On 17 August 2017, the Department refused to approve the nomination.  The applicant filed an application to review the Department’s decision 5 September 2017.

13. This matter proceeded to a hearing on 30 August 2018 with the applicant giving evidence in support of her application.  That hearing followed the nominator’s hearing on that same day.

14. The nominator’s application was refused by the Tribunal on 27 November 2018.  By reason of that refusal, the applicant cannot satisfy cl.186.223(2)

    Advice to the Applicant pursuant to s.359A

15. On 29 November 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide information about the Tribunal’s decision refusing the nomination application made by Blue Gulabi Pty Ltd as trustee for the Blue Gulabi Family Trust on 27 November 2018 identifying the applicant as the person to fill the position, or comments on information that it considered would be part of the reason for affirming the decision under review, in writing.

16. The invitation was sent to the last address provided in connection with the review and advised that, if the information was or comments were not provided in writing by 13 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

17. The applicant has not provided the information or comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

18. Therefore, cl.186.223 is not met.

19. 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.

20. The Tribunal must also affirm the decision not to grant the second and third named applicant’s subclass 186 visas as it finds that they do not meet the secondary visa criteria in cl.to be members of the family unit of a person who holds 186.311

    DECISION

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

    Ian Berry
    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.