Singh (Migration) [2018] AATA 1035 (15 March 2018)

Last Updated: 27 April 2018

Singh (Migration) [2018] AATA 1035 (15 March 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Balkar Singh

CASE NUMBER: 1732609

DIBP REFERENCE(S): BCC2017/625376

MEMBER: Jade Murphy

DATE: 15 March 2018

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 15 March 2018 at 1:24pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement for applicant to be subject of an approved nomination – Applicant not subject of an approved nomination – Request for ministerial intervention – Compassionate circumstances – Circumstances do not justify referral to the Minister

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, r 5.19(3), 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 30 November 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 15 February 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 Agreement stream.
4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.
5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by LMV (Australia) Pty Ltd was refused on 24 October 2017.
6. The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
7. The applicant was represented in relation to the review by his 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 cl.186.223.

Nomination of a position

10. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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 Tribunal explained that one of the criteria for the grant of the visa is that the relevant nomination has been approved by the Minister or a delegate of the Minister for Immigration and Border Protection. As recorded in the primary decision, a copy of which the applicant provided to the Tribunal, this position nomination was refused and is no longer available to him.
13. The applicant presented evidence regarding some issue with a previous lawyer or representative, that he was affected by significant health problems and also the death of his father during this time. No evidence was presented to the Tribunal to show that the applicant is the subject of an approved nomination.
14. 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.186.223 is not met.
15. 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.

Ministerial Intervention

16. The applicant requested that the Tribunal make a referral for Ministerial Intervention. In this respect the Tribunal notes the following documentary evidence was provided:
    • 16.1 Medical evidence regarding the applicant’s diagnosis and treatment for a brain tumour.
17. In addition, at hearing, the applicant’s agent submitted that a referral for Ministerial Intervention should be made by the Tribunal because of the following:
    • 17.1 The applicant’s significant health problems but noting that his condition was ‘totally cured’;
    • 17.2 The applicant has been here for ten years with a history of engaging in study and employment in Australia; and
    • 17.3 There had been some issues that had affected him with a previous representative that were out of the applicant’s control.
18. In considering whether it should make a referral that the Minister intervene and exercise his power under s.351 of the Act, the Tribunal has considered the Guidelines in PAM 3 as to the circumstances in which the Minister may exercise this power. In doing so, the Tribunal notes it is not bound by department policy.
19. The Tribunal has considered the submissions made in paragraphs 16 and 17 above. However, Ministerial Intervention is exercised in cases where there are unique and / or exceptional circumstances. Notwithstanding that the applicant has suffered from significant health issues (noting that his agent submits that he is now completely recovered), that there had been some issues with a previous representative that were out of the applicant’s control, and that he has contributed to the Australian community and economy over the last ten years, the Tribunal is not of the view, based on the evidence provided, that the applicant’s circumstances are unique and / or exceptional such that the Tribunal should refer this case.
20. The Tribunal notes that it is open to the applicant to make a direct request for Ministerial Intervention.

DECISION

21. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Jade Murphy
Member