Thapa (Migration)

[2019] AATA 2078

Thapa (Migration) [2019] AATA 2078 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Apil Singh Thapa
Mrs Urmila Thapa

CASE NUMBER:  1724690

HOME AFFAIRS REFERENCE(S):           BCC2017/2256884

MEMBER:Michael Cooke

DATE:13 February 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 13 February 2019 at 4:17pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nomination refused – no pending review of nomination refusal – issues with migration agent – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.13, 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 Immigration and Border Protection on 29 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of .

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant’s employer nomination was not approved and there is not application for review of this refusal before the Tribunal.

6. The applicants appeared before the Tribunal on 8 February 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review.

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 that the applicant is not the subject of an approved nomination.

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

12. The first named applicant informed the tribunal that he had been the victim of an incompetent migration agent who failed to submit his employer’s work contract to the Department as part of the nomination approval process. Thus he was refused. He had made a formal complaint to the MARA and he submitted the complaint to the tribunal. He had enjoyed a great working relationship with his employer and his employer was incensed when his agent failed to do his job. He said the employer was furious and became angry at the migration agent’s inability to get the applicant’s nomination approved. The applicant submitted some of the email correspondence between his (then) employer and the agent as evidence of the employer’s grief.

13. The Tribunal is alarmed that (yet again) an erstwhile competent individual working in a regional area with his family has been prevented from succeeding in their visa application by the incompetence and carelessness of a migration agent. The applicant has lodged an official compliant at MARA but now faces the ruination of his dream of making a new life in Australia - a country he indicates he loves and whose laws he obeys. He is also the father of an 8 month old child. His wife blames the loss of an earlier pregnancy on the stress that the migration debacle created in their life. The combination of all these events has meant that they have needed to relocate to Sydney into the care of the applicant’s uncle - Dr Kiran Thapa - of Summer Hill.

14. However, as was explained to the first named applicant in the Request for Information letter (pursuant s.359(2)) sent to the applicants on 5 December 2018, the nomination for the position identified in his visa application was not approved. There is also no pending review of the decision to refuse the nomination at the Tribunal at time of decision.

15. Therefore, cl.186.223(2) is not met.

16. 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.

    DECISION

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

    Michael Cooke
    Senior 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.