Sukhbir Singh (Migration)

[2020] AATA 3538

Sukhbir Singh (Migration) [2020] AATA 3538 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Sukhbir Singh
Mrs Gurwinder Kaur

CASE NUMBER:  1812008

HOME AFFAIRS REFERENCE(S):          BCC2016/4257931

MEMBER:Jennifer Cripps Watts

DATE:14 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 August 2020 at 12:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – request for postponement of hearing – postponement requests to delay finalisation of decision – separate application for a Subclass 187 visa – Temporary Residence Transition stream – Cook – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 (the delegate)on 16 April 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 16 December 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 Labour Agreement stream.

4. A hearing invitation was sent to the applicants inviting them to attend a Tribunal hearing on 28 May 2020.   By letter dated 19 May 2020, the primary applicant (the applicant) requested that the hearing be postponed on the basis that he is waiting for a decision relating to an application for a Subclass 187 visa.  He provided evidence that the nomination relating to the Subclass 187 visa has been approved.  The Tribunal considered the request but did not grant the postponement because the reason is not a matter that is material to the issue on the review.  The applicant was informed in writing and the applicants appeared before the Tribunal on 28 May 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. 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 Cook.

6. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was not a related approved nomination.

7. The applicants were represented in relation to the review by their registered migration agent, Manvinderjit Kaur.  At the Tribunal hearing, two attempts were made to reach the migration agent, at 10:34 and 10:36am.  The calls went unanswered.  At 10:37am, the applicant was asked if he knew why the migration agent did not appear to be available.  The applicant indicated he was not aware why the calls went unanswered, but then instructed that he would proceed without the attendance of the migration agent.

8. At the beginning of the hearing, the Tribunal informed the applicant that due to restrictions in place due to the COVID-19 situation the Tribunal, Federal Court and other courts and tribunals were hearing matters by phone where it is appropriate to do so.  The applicant was told that it is very important that we are both confident that we are hearing and understanding each other clearly and, if he did not understand or hear a question, he should inform the Tribunal and the matter could be explained, clarified or rephrased.  From time to time matters were clarified, which is not unusual in a migration hearing.  The Tribunal is satisfied that the phone lines were clear and that all who participated in the hearing could be heard and understood.

9. From the conclusion of the Tribunal hearing on 28 May 2020, the applicant requested that the Tribunal delay finalising its decision on four occasions.  The reason he gave was that he has made an application for a Subclass 187 visa and that the related nomination, by Boathouse Rockhampton Pty Ltd, was approved on 23 December 2019.  Departmental records sited by the Tribunal confirmation the approval of the nomination.  

10. The Tribunal hearing was on 28 May 2020 relating to the refusal of the applicants’ Subclass 186 visas.  The applicant indicated at the Tribunal hearing he understood that, without an approved nomination relating to the refusal of his Subclass 186 visa that is the subject of the review, he could not meet the criteria for the grant of the visa and that the decision he would be receiving from the Tribunal would be unfavourable.  This is the same determinative matter on which the delegate refused the visas.

11. The first postponement request to delay finalising the decision was granted until 11 June 2020, a second until 30 July 2020 and a third until 14 August 2020; a total of about two and a half months.  When the (third) extension to 14 August 2020 was granted, the applicant was notified in writing that from 14 August 2020 no further extensions of time would be granted relating to finalisation of the decision.  Another extension of time request was received on 14 August 2020, in which the applicant advised that his current visa application before the Department has not progressed.  The request was considered.  However, in the circumstances, the Tribunal considered it reasonable to proceed to finalise this matter.  The applicant also requested that the Tribunal make a request to the Department to progress his Subclass 187 application.  The request is acknowledged.  However, the Tribunal is independent of the Department and does involve itself in the processing of visa applications or matters outside its jurisdiction.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the nomination for the position of Cook (ANZSCO 351411), by Mann Foods Pty Ltd, has been approved.

14. Referring to the applicant indicating he has applied for a Subclass 187 visa, the Tribunal acknowledges that the following documents have been provided:

    a.Application made by the applicants Sukhbir Singh and Gurwinder Kaur for Subclass 187 visas on 1 November 2019; and

    b.Notification of the approval, on 23 December 2019, of a Nominated Position as an Approved Appointment in the RSMS Nomination (Direct Entry) for Sukhbir Singh in the position of Cook (ANZSCO 351411).

    i.The file reference on the Department approval notice is BCC2019/5431396

    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. Department records indicate that the nomination relating to the visa application that is the subject of this review and the position of Cook, by Mann Foods Pty Ltd, was refused on 5 March 2018.  They lodged a review application and, on 15 October 2019, the Tribunal (different constituted) found it had no jurisdiction to review the application relating to the refusal of the nomination. 

18. Prior to the scheduled Tribunal hearing, on 7 May 2020, the Tribunal sent the applicant a letter particularising adverse information about the nomination relating to the refusal of his Subclass 186 visa, explaining why this would be a reason or part of the reason for affirming the decision to refuse the visa; relevantly, details were particularised, including the applicant being informed that it appeared his Subclass 186 visa application was not the subject of an approved nomination by Mann Foods Pty Ltd, as required by cl.186.223.  It was requested in the letter that the applicant respond to the information in writing no later than 21 May 2020, or within any extended timeframe granted.  As has already been mentioned earlier, the applicant responded on 19 May 2020 and subsequently attended his scheduled Tribunal hearing on 28 May 2020.

19. The applicant’s visa refusal was discussed with him at the Tribunal hearing, among other things not material to the issue on the review; the applicant was given the opportunity to discuss his current visa status and provided the Tribunal with details about his family’s personal circumstances and the Subclass 187 visa application currently with the Department.  The applicant confirmed that he understood that he has no approved nomination relating to the Subclass 186 visa that is the subject of this review and that he cannot therefore meet the requirements for the grant of the visa.

20. For the reasons given, cl.186.223 is not met.

    Other matters

21. The applicants applied for Subclass 187 visas on 1 November 2019 and, according to Department records, finished providing supporting documents in March 2020.  The applicant said at the Tribunal hearing that they had to delay providing these additional (medical) documents in support of their Subclass 187 visa applications because the secondary applicant had a baby on 14 December 2019 and needed to wait at least a month to do medicals and provide results; this was a month or so after the visa application had been made and about a week before the related RSMS nomination by Boathouse Rockhampton Pty Ltd was approved. 

22. It was confirmed with the applicant at the hearing that he understood the decision in this matter would be unfavourable because he did not have an approved nomination relating to the Subclass 186 visa.  As detailed earlier in this decision, on three occasions, from 28 May 2020, as a matter of fairness to the applicant, at the applicant’s request the Tribunal postponed finalising this decision as the applicant had hopes that their Subclass 187 visas would be approved.  In the applicant’s email dated 14 August 2020, he requested a fourth extension of time.  He did not provide any evidence indicating the Subclass 187 visas have been approved.

23. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream in relation to the nomination by Mann Foods Pty Ltd.  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.

    Secondary applicant

24. The Tribunal has affirmed the decision to refuse the applicant’s Subclass 186 visa and, as the applicant is not a person who has been granted and holds a Subclass 186 visa, the Tribunal also affirms the decision to refuse the visa of the secondary applicant, Gurwinder Kaur.

    DECISION

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

    Jennifer Cripps Watts
    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.