Patel (Migration) [2019] AATA 5147 (15 November 2019)

Last Updated: 3 December 2019

Patel (Migration) [2019] AATA 5147 (15 November 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Khushbu Kantilal Patel
Sunilkumar Rameshbhai Patel
Angel Sunilkumar Patel

CASE NUMBER: 1727253

HOME AFFAIRS REFERENCE: BCC2016/592426

MEMBER: Lilly Mojsin

DATE: 15 November 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 15 November 2019 at 4:35pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – non-appearance before the Tribunal – Temporary Residence Transition stream – Contracts Administrator – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362B
Migration Regulations 1994 (Cth), 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 17 October 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 10 February 2016. 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. The Tribunal wrote to the applicants on 22 October 2019 and advised the applicants that the Tribunal had considered the material before it and was unable to make a favourable decision on the information alone. The applicants were invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 14 November 2019 at 2.00pm. The applicants were advised that if the applicants did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
5. On 7 November 2019 and 13 November 2019 the Tribunal sent an SMS reminder to the applicants regarding the hearing. On 13 November 2019 an officer of the Tribunal contacted the migration agent’s office, and was advised that the agent was currently overseas. The officer enquired whether the applicants in this review will be attending the scheduled hearing as the applicants have ticked "no" on the hearing response form. The agent’s colleague confirmed that the nominee and migration agent will not be attending as they have business commitments.
6. The Tribunal officer confirmed with the agent’s colleague that no one will be attending the scheduled hearing and no hearing postponement request was made.
7. The applicants did not attend the scheduled Tribunal hearing on 14 November 2019 at 2.00pm.
8. The Tribunal finds that the applicants were aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicants to the Tribunal, and the applicants failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review.
9. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

CONSIDERATION OF CLAIMS AND EVIDENCE

10. In the present review, the first named applicant (applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Contracts Administrator ANZSCO (511111).
11. 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 was not the subject of an approved nomination, that had been made by G Moussa & M Moussa [ABN 22111989729] trading as Southern Cross Property Maintenance and Constructions.
12. Clause 186.233 as applicable in this review is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Temporary Residence Transition stream. The position must be the one that was the subject of the declaration made as part of the current visa application.
13. In addition, this criterion also requires that:
    • the person who will employ the applicant is the person who made the nomination
    • 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.
14. The applicant did not attend the Tribunal hearing. Without further evidence from the applicant the Tribunal is unable to be satisfied that the applicant is the subject of an approved nomination.
15. The Tribunal must affirm the decision under review.

DECISION

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

Lilly Mojsin
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.