Ahmad (Migration)

[2022] AATA 1602

Ahmad (Migration) [2022] AATA 1602 (11 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Qadeer Ahmad

Mrs Warda Sabeen

Miss Aroush Ahmad

REPRESENTATIVE:  Mr Usman Ghani

CASE NUMBER:  1831366

HOME AFFAIRS REFERENCE(S):          BCC2018/3763250

MEMBER:Ian Berry

DATE:11 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 11 January 2022 at 12:08pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – short-term stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – sponsoring employer closed business – serious allegations against previous and current sponsor to be referred for investigation – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 Home Affairs on 11 October 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 14 June 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the short-term stream to work in the nominated occupation of Cook ANZSCO 351411.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant did not have a nomination that had been approved and not withdrawn.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has an approved nomination that has not been withdrawn.

   Requirement for an approved nomination

7. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval and has not ceased.

8. Clause 482.212(1) is set out below:

   482.212

   (1)each of the following applies:

   (a)the nomination identified in the application has been approved under s.140GB of the Act;

   (b)the person who made the nomination was an approved sponsor at the time the nomination was approved;

   (c)the approval of the nomination has not ceased under r.2.75.

9. The application for the nomination of the applicant was made by his employer the Trustee for Jamila Family Trust. The Tribunal decided not to approve this nomination. That decision was made on 26 October 2021.

   For these reasons the requirements of cl 482.212(1) are not met.

   Invitation to the applicants under s.359A

10. On 9 December 2021, the Tribunal wrote to the applicants through their migration representative Mr Usman Ghani, under s.359A of the Act, inviting the applicants to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review:

11. The information put before the applicants was that:

    ·On 14 June 2018, you lodged an application for a 482 visa with the Department of Home Affairs (Department of Immigration and Border Protection) (the Department).

    ·On 11 September 2018, the nominator, The Trustee for Jamila Family Trust, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 2 October 2018.

    ·On 26 October 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.

12. This information is relevant to the review because the primary applicant’s (Mr Qadeer Ahmad) sponsor’s nomination application had been refused and without an approved nomination, the applicant could not comply with s.482.212(1).

13. The invitation was sent to the last address provided in connection with the review (in this case the applicants’ migration representative) and advised that, if the information or comments were not provided in writing by 23 December 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement the they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments and for the Tribunal to proceed to make its decision.

14. By email dated 21 December 2021, the applicants have requested an extension of time in these terms:

    We have been working with our client to collate the information and evidentiary documents required to prepare a written response. The nature and pattern of the information being collated are quite specific in the work delays are due to the arrangement of further documentation by the applicant. Also, the upcoming holidays period is another reason, therefore, our working hours will be reduced as well. We seek the Tribunal’s indulgence in granting an extension of time allowed for our client to submit a response adequately. We would be obliged if you would allow us until 28 January 2022 to provide the written response’

15. While the applicant did not provide the Tribunal with any specific reason as to why such an extension is required, the Tribunal exercised its discretion to allow the applicants to have until (and including) 10 January 2022 to provide such information that to the migration agent states as necessary to provide to the Tribunal.

16. The applicants provided the following submissions to the Tribunal consisting of allegations against previous sponsors:

    ·Submission made on behalf of the applicants explaining the background to the primary applicant’s working history. Before moving to Queensland, the applicant stated that a previous sponsor may have suggested to the applicant that to his business needed a capital injection and sought an injection of $50,000 into that sponsors business.

    ·The applicant’s then sponsor is alleged to have now disappeared leaving the applicant with a massive debt.

    ·The submission also states that the applicant now knows that ‘he got business approval from the Department of Home affairs by fraud as well’.

    ·On moving to Queensland, the applicant successfully applied for another job for which he was sponsored but that nomination was refused.

    ·The applicant also alleges his current sponsor never paid PAYG tax and the superannuation contribution in favour of the applicant. A letter from the Australian Taxation Office seems to corroborate.

    ·As the applicant’s most recent sponsorship closed his business he has now returned to Melbourne and suffers from a ‘deep economic loss and along with severe mental pressure’.

17. The applicant provided the tribunal with the following documents which are irrelevant to the issue before the Tribunal:

    ·Submission dated 9 January 2021 (should be 9 January 2022).

    ·Bank statement (nine pages) 25 May 2017 – 24 November 2017.

    ·Bank statement (six pages) 25 November 2017 – 24 May 2018.

    ·Bank statement (10 pages) 25 May 2018 – 24 November 2018.

    ·Bank statement (five pages) for May 2017 – 24 May 2017.

    ·Client agreement between the applicant and the migration agent dated 8 May 2018, unsigned by the applicant.

    ·Employment Agreement with Budget Time Pty Ltd (Heritage Restaurant) dated 15 July 2016.

    ·Email from Australian taxation office to the applicant dated 10 November 2021.

    ·Payslip for the period 20 May 2019 – 2 June 2019 with R& J Food Services.

18. The Tribunal considers that the allegations raised by the applicant are serious and will refer this matter to Tribunal staff to consider referring this matter to the Department for investigation.

19. As the primary applicant, has not met one of the essential requirements for the visa, the decision under review must be affirmed.

20. In respect of the second and third named applicants (the secondary applicants), the Tribunal notes there is no information before it to suggest that the secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Ian Berry
    Member