Walia (Migration)

[2021] AATA 4116

Walia (Migration) [2021] AATA 4116 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kanchan Walia
Mr Gurpreet Singh
Miss Ravkirat Kaur

CASE NUMBER:  1823343

HOME AFFAIRS REFERENCE(S):          BCC2017/3755445

MEMBER:De-Anne Kelly

DATE:23 August 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 23 August 2021 at 8:32am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Guest House Services Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.223, 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 Home Affairs on 27 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 October 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 (Cth) (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 Guest House Services Manager.

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 a delegate of the Minister refused on 28 November 2017 the employer nomination lodged by JD Management Services Pty Ltd ATF Burnell Trust being the application referred to in cl.223(1).

6. The applicant appeared before the Tribunal on 11 February 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

7. The applicant was represented in relation to the review by its registered migration agent.

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.186.223(2) and cl.186.223.

   (2)      The Minister has approved the 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 reg 1.13A and reg 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. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal on 28 June 2021 affirmed the decision under review to refuse the employer nomination on the basis that the nominator had failed to satisfy r.5.19(3) of the Regulations.

13. On 5 August 2021, the Tribunal, under s.359A of the Act sent the applicants an invitation through their appointed migration agent, to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in their visa application is not the subject of an approved nomination. This would mean that they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

14. The Tribunal advised that the secondary applicants may not meet cl 186.311 which requires that each applicant be a member of the family unit of a person who satisfies the primary criteria for the grant of the visa and who holds a Subclass 186 visa and affirm the decision under review in respect of their applications. The Tribunal advised that the comments or responses should be received by the 19 August 2021 or the applicants could request an extension of time before that date.

15. The Tribunal, in response to the invitation received a letter advising that the applicant understood the employer nomination decision had been affirmed and did not wish to withdraw their review application. The Tribunal considers it is reasonable to make a decision on this case.

16. Since the Tribunal has affirmed the employer nomination decision under review there is no approved employer nomination to satisfy cl.186.223(2) and the visa applicants do not meet cl.186.223(2).

17. Therefore, cl.186.223 is not met.

18. 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.

19. Mr Gurpreet Singh and Miss Ravkirat Kaur were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

    186.311
    The applicant:
    (a) 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; and

    (b) made a combined application with the primary applicant.

20. The secondary applicants made a combined application with the primary applicant and applied as the spouse and child and therefore members of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186). Therefore, the primary applicant is not a person who holds a subclass 186 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a subclass 186 visa. The secondary applicants therefore do not satisfy cl.186.311.

21. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant them a subclass 186 visa.

    DECISION

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

    De-Anne Kelly
    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.