Kaur (Migration) - [2019] AATA 3124

Kaur (Migration) [2019] AATA 3124 (1 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kulbir Kaur
Mr Varinder Singh
Miss Roseman Samra
Master Dilraj Singh Samra
CASE NUMBER:  1834071
HOME AFFAIRS REFERENCE(S):          BCC2017/1597433
MEMBER:Cathrine Burnett-Wake
DATE:1 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 01 May 2019 at 12:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry Cook (ANZSCO 35112) – no approved nomination – no response to tribunal communication – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2), 360(3), 363A
Migration Regulations 1994, Schedule 2, cl 186.223
CASES
Singh v MIBP [2017] FCAFC 67
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 4 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Pastry Cook (ANZSCO 35112) with Hot Plate Bakery & Cafe Pty Ltd.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, Hot Plate Bakery & Cafe Pty Ltd, was refused by the Department, as such, there was no approved nomination.
On 16 April 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the application for review of the related nominated position, made by Hot Plate Bakery & Cafe Pty Ltd, was affirmed by the Tribunal.
It was explained in the letter to the applicants that this information is relevant to their review because 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.
The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response, or any request for an extension of time in which to do so, by 30 April 2019, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.
However, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, request an extension of time within the prescribed period in which to do so.
The Applicant's Loss of the Right to a Hearing
The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicants, which was the last address for service provided by the applicants in connection with the application for review.
However, as noted above, the applicants failed to provide their comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicants and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there is an approved nomination.
Nomination of a position
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.
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.
The Company's nomination application was refused by the Department and although a review application was lodged with the Tribunal, it was affirmed by the Tribunal. The applicants failed to provide any response to, or comment on, this information. As the nomination application for the position to which the applicants Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.
Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.
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.
Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Cathrine Burnett-Wake
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.

Details

AGLC: Kaur (Migration) [2019] AATA 3124
Case: [2019] AATA 3124
Decision Date: 1 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal, with Member Cathrine Burnett-Wake presiding, considered the case of Ms Kaur and her family concerning their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The central dispute revolved around whether the applicants met the eligibility criteria for this visa subclass, particularly the requirement for an approved nomination.

The primary legal issue before the Tribunal was to determine if the applicants satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, and that the visa application must be made within six months of the nomination's approval. The Tribunal also had to consider the secondary criteria for the spouse and children of the primary applicant under clause 186.311.

The Tribunal reasoned that the Department of Immigration had refused the Company's nomination application. Although a review application was lodged with the Tribunal, that review application was affirmed, meaning the nomination remained unapproved. As the nomination application had not been approved, the applicants could not meet the criteria stipulated in clause 186.223(2). Furthermore, the applicants failed to provide any response or comment to the information regarding the unapproved nomination. Consequently, the Tribunal found that the primary applicants did not meet the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal also affirmed the decision to refuse visas to the second, third, and fourth applicants, as they did not meet the secondary criteria as family members and had not demonstrated they met the primary criteria in their own right. The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether there is an approved nomination.Nomination of a position 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. 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. The Company's nomination application was refused by the Department and although a review application was lodged with the Tribunal, it was affirmed by the Tribunal. The applicants failed to provide any response to, or comment on, this information. As the nomination application for the position to which the applicants Subclass 186 visa application relates has not been approved it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met. 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. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Cathrine Burnett-WakeMemberATTACHMENT A186.223(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.

Decision

Reasons for decision

Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Cathrine Burnett-WakeMemberATTACHMENT A186.223(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.

Ratio Decidendi

Legal Principle Established

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