Sukhwinder Singh (Migration)

[2018] AATA 5864

Sukhwinder Singh (Migration) [2018] AATA 5864 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhwinder Singh
Mrs Sarabjit Kaur Sidhu
Mr Harshdeep Singh Sidhu
Miss Manjot Kaur Sidhu

CASE NUMBER:  1708368

HOME AFFAIRS REFERENCE(S):           BCC2016/1986279

MEMBER:Karen Synon

DATE:24 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2018 at 11:56am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Baker – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, cls 186.223, 186.233, 186.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

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 4 April 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 8 June 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. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘Baker’.

5. The delegate refused to grant the visas because the first named applicant (‘the applicant’) did not meet cl.186.223 of Schedule 2 to the Regulations because the proposed sponsor, Noisette Bakery Pty Ltd ATF Noisette Bakery Unit Trust advised the department on 3 January 2017 that it no longer intended to employ the applicant and was withdrawing its nomination.

6. The applicants applied for review of the primary decision on 18 April 2017 and provided a copy of the department’s decision to the Tribunal.

7. The applicants appeared before the Tribunal on 24 October 2018 to give evidence and present arguments.  The secondary applicants all gave evidence.  The Tribunal also received oral evidence from Anjeli Madhok, a family friend.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is cl.186.233.

    Nomination of a position

11. 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.

12. 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.

13. The Tribunal explained at the hearing that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him.  As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination was withdrawn by his proposed sponsor who advised the department in writing that it no longer wanted to employ him.  The applicant agreed this was correct.

14. Invited to make any submissions or comments the applicant explained the circumstances surrounding his sponsor’s nomination withdrawal saying he had been working for the company for 6 years on a 457 visa on the understanding that after 3½ years they would sponsor him.  However he was rostered to work at Christmas when he was not available due to his family visiting from overseas so he phoned in sick.  This resulted in him being called in and told they were withdrawing his nomination but that he could continue to work for them.  The applicant said he was confused and upset and should not have signed a resignation form.  The applicant said he cannot apply for another visa due to being diagnosed with [a medical condition] after he completed his medical tests for this visa. He is still able to work and is working now.  The applicant expressed concern that he will not be able to get medical treatment for his health condition in India.  The applicant agreed that the nomination for the occupation of Baker with Noisette Bakery was no longer available to him.

15. The secondary applicants all gave evidence that they wanted to stay in Australia and both the applicant and his wife expressed strong concerns for their two children should they have to return to India saying they do not speak or write the language and asked that they be allowed to stay in Australia at least until the children finish year 12.  The applicant’s son is aged 15 and is in year 9 at Noble Park Secondary College; he has been here for 6 years and has a lot of friends here and wants to stay.  His daughter is aged 12 and is a student at Noble Park primary school.  Anjeli Madhok, a family friend, gave evidence that the children should be able to stay in Australia to study on some kind of visa as they have been here for 6 years.

16. The Tribunal has sympathy for the applicants’ situation and accepts the applicant and his wife’s genuine concern for their children’s future should the family have to return to India however, as explained at the hearing, the only issue before the Tribunal is whether the applicant has an approved nomination and thus can satisfy cl.186.223.

17. Based on the information before it in the primary decision and confirmed by the applicant’s oral evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.186.233 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

19. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.186.311 which requires that an applicant must be a member of the family unit of a person who holds of a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

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

    Karen Synon
    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.