1711309 (Migration)

[2020] AATA 4421

1711309 (Migration) [2020] AATA 4421 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711309

MEMBER:Cathrine Burnett-Wake

DATE:20 July 2020

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 20 July 2020 at 6:03pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – business sold after dispute between directors and company deregistered – no evidence business still operating, or position available – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 11 May 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 19 July 2015. 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. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Supply and Distribution Manager (ANZSCO 133611)’.

5. The nominator, [Company 1], lodged a nomination application online on 27 March 2015 in relation to an occupation ‘Supply and Distribution Manager (ANZSCO 133611)’. This application was approved on 06 July 2015.

6. The decision record, which was supplied to the Tribunal as part of the review application outlines the delegate refused to grant the visa because the applicant did not meet cl.186.223(4) of Schedule 2 to the Regulations. The delegate formed the view that the nominated position no longer exists as the company had been deregistered and because information obtained during a site visit indicated the business had been taken over by new owners and the visa applicant was not employed there.

7. The applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position is still available to the applicant.

   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 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. During the hearing the applicant told the Tribunal that he was sponsored by a business ([Company 1]) owned by his brother and his brother’s friend. The applicant told the Tribunal that he began working for the business in mid-2012 and that after two years working for them, his brother told him he was eligible to apply for permanent residency, which he did.

13. The applicant told the Tribunal that around the time he applied for his permanent residency the business was sold because of a dispute, and a split happened within the company between the directors.

14. The applicant told the Tribunal that he ceased working for the company in 2017. He however claimed, although he was no longer employed by the company the position was ‘still available to him’, however, the person who he needs to get the documents off to prove this was stuck in Pakistan due to Covid-19.

15. The applicant told the Tribunal that he married an Australian citizen in 2017, and he knew he was eligible to apply for a spouse visa. However, he needed to pay approximately $8000 to do so and because of health issues of his mother in law, who was undergoing treatment for cancer and because his wife also had health issues, that any money they had went towards medical expenses. The applicant told the Tribunal that he wanted to apply for a spouse visa, however, a lack of funds was preventing him from doing so.

16. During the hearing, the Tribunal discussed with the applicant that it had no evidence before it that [Company 1] was still operating, nor that the position was still available to him as he claimed. Further, that given his verbal evidence that he had not worked for the company since 2017 it raised a further concern that there was no position available to him, as if there was then it would be reasonable to expect him to be currently working in the position. In response the applicant contested there was a job for him, and re-iterated that it was difficult to get supporting information because the person he could obtain it from was in Pakistan.  Given the applicant’s claims, the Tribunal agreed to give the applicant additional time of one-week to provide further evidence that the company was still in operation and the position was still available to him.

17. On 20 July 2020, the following documents were provided:

    • An email purporting to be from a Director of [Company 1], reproduced as follows:

    ---------- Forwarded message ---------

    From: [Company 1] <[Email address 1]>

    Date: Mon, Jul 20, 2020 at 8:25 AM

    Subject: Supporting Evidence - [The applicant]

    To: [Email address 2]

    [The applicant]

    [Address]

    Client Name [The applicant]

    [Date of Birth]

    Date of Visa Application 19 July 2015

    [Application ID]

    [Transaction Reference Number] [File Number] Dear Officer,

    [The applicant] commenced his employment with [Company 1] in year 2012. He was sponsored by [Company 1] in the 457-visa category. Evidence of his employment details attached.

    After successful completion of 2-year period, [the applicant] applied for permanent visa subclass 186 on 19th July 2015. He continued working under the same nomination during the duration of his visa application.

    Unfortunately, due to the longer than expected delays and change in the business administration, has resulted in his case being delayed for longer than expected duration and unfavourable outcome.

    [The applicant] nomination was still valid when he applied for the sub class 186 and was going to remain an employee of [Company 1] for the duration of his visa application.

    Please consider his application as he has already worked under the same nomination for a period of more than 4 years.

    [Mr A]

    Director

    [Company 1]

    • Copy of 2015 Tax return for [Company 1]
    • Copy of 2016 Tax return for [Company 1]
    • Financial statements for year end 30 June 2016 for [Company 1]
    • Quarterly BAS for [Company 1] for period 1 July 2014 to 30 September 2014
    • Quarterly BAS for [Company 1] for period 1 July 2015 to 30 September 2015
    • Quarterly BAS for [Company 1] for period 1 October 2015 to 20 December 2015
    • Quarterly BAS for [Company 1] for period 1 January 2016 to 31 March 2016
    • Quarterly BAS for [Company 1] for period 1 April 2016 to 30 June 2016

18. The Tribunal notes that the delegate’s decision outlines that the company was deregistered on 15 January 2017. The delegate indicated that the ‘sponsor’ advised that steps were taken to reinstate registration in their response to the Department, dated 15 April 2017.  However, no evidence was provided to support this claim and the Australian Company Number remained deregistered at the time of the delegate’s decision.[1] The Tribunal has not received any evidence to the contrary that registration has been reinstated in order to address the concern raised at hearing regarding the status of [Company 1].

    [1] This information is contained in the delegate’s decision at page [4].

19. In reference to the documents provided  to the Tribunal on 20 July 2020 relating to the BAS and financials, they are from 2015 and 2016 and appear to be duplicates that were previously provided to the Department on 9 December 2016.[2] There is no contemporary information regarding the current status or operation of the business. As such the Tribunal gives these documents no weight.

    [2] These documents are referenced in the delegate’s decision at page [3].

20. The Tribunal notes the email from [Mr A], who claims to be the Director of [Company 1]. This email does not confirm the company is still in operation, nor does it state the position is still available to the applicant.

21. Based on the evidence before it and the reasons above, the applicant has not persuaded the Tribunal that [Company 1] is operating. Consequently, the Tribunal is not satisfied that the position is still available to the applicant.

22. Therefore, cl.186.223 is not met.

23. 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.

    DECISION

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

    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.