Yash Pal (Migration)

[2020] AATA 4692

Yash Pal (Migration) [2020] AATA 4692 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yash Pal Yash Pal
Mrs Sapna Sapna

CASE NUMBER:  1905704

DIBP REFERENCE(S):  BCC2018/1200128 BCC20181200128

MEMBER:Ian Berry

DATE:5 November 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visas

Statement made on 05 November 2020 at 2:55pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager – tribunal affirmed nomination review – no response from applicant to tribunal communication – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 186.223(2), rr 1.13A, 1.13B

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 on 22 February 2019 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 March 2018. The delegate refused to grant the visa on the basis that the applicant did not have a nomination in which he was identified as the person to occupy the nominated position: regulation 186.223(2).

3. The applicant appeared before the Tribunal on 9 March 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

4. The applicants were represented in relation to the review by their registered migration agent Ms M Bassett MARN 1279361. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has an approved nomination.

   Nomination of a position

7. 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.

8. Clause 186.223 is applicable in this case is set out as follows:

   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.

9. Essentially, clause 186.223 requires 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 applicant.  The position must be the one that was the subject of a declaration that was required to be made as part of the current visa application.

10. 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 regulation 1.13A and regulation 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

11. 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 Customer Service Manager.

12. On 15 October 2020, the Tribunal affirmed the decision of the Department to refuse the nomination application by Virinder Singh Pty Ltd[1].

    [1] Case number 1902299

13. Section 359A invitation

14. On 16 October 2020, the Tribunal by letter under s.359A of the Act, invited the applicant to comment or respond to certain information which the Tribunal considered would, subject to comments or response, be the reason, or part of the reason, for affirming the decision under review.  Of the information were that the nomination lodged by Virinder Singh Pty Ltd was refused by the Department and that that decision had been affirmed by the Tribunal.

15. The applicant was invited to respond by 30 October 2020, failing which the applicant lost any further entitlement to appear for the Tribunal to give evidence and present arguments.  The applicants did not respond.  The Tribunal has proceeded with this review based on the information available to it.

16. In support of his application, the applicant has relied upon the information supplied to the Tribunal from the related file ‘Virinder Singh Pty Ltd’ , together with the information in the application to the Department by the applicant, and the Tribunal’s file for the applicant. The Tribunal considered the information provided by the applicant’s   sponsor Virinder Singh Pty Ltd, and the applicants representative in submissions made to the Tribunal.

17. The regulations require, for the applicant to be approved for a visa under the Employer Nomination Scheme Subclass186, the Minister must have approved the nomination.  There is no discretion in the Tribunal to waive this requirement, and if the nomination of the application by the sponsor is unsuccessful, then the visa applicant must also fail.

18. The Tribunal is satisfied there is not an approved nomination to which the applicant is the identified nominee.  The Tribunal is also satisfied that there is no application for a review underway in respect of the refusal of the sponsors application for the nomination which was affirmed by the Tribunal on 15 October 2020.

19. Therefore, cl.186.223 is not met.

20. 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

    Secondary applicant

21. The secondary applicants are members of the family unit of the applicant.

22. In order to qualify for the visa, the secondary applicants must be members 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 that visa, and who have made a combined application with the primary applicant[2].

    [2] regulation 186.311(a)

23. As the primary applicant does not hold a 186 visa, the Tribunal finds the secondary applicants are not members of the family unit of a person who holds a Subclass one visa and does not satisfy regulation 186.311.

24. As the second named applicant is not the member of a family unit of a person who holds a Subclass 186 visa and as there is no evidence to suggest that she meets the primary criteria for the grant of the visa, the Tribunal finds that the second named applicant next variable does not satisfy clause 186.311. The decision under review in respect of the second named applicant must therefore be affirmed.

    DECISION

25. The Tribunal affirms the decisions not to grant the applicant’s Employer Nomination (Permanent) (Class EN) visas.

    Ian Berry

    
    

    Member