AKTER (Migration)

[2019] AATA 1844

AKTER (Migration) [2019] AATA 1844 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fatema AKTER
Mr Mohammad Mobarak Hossain
Master Rafan Bin Hossain

CASE NUMBER:  1731257

HOME AFFAIRS REFERENCE(S):           BCC2017/101657

MEMBER:R. Skaros

DATE:12 June 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 12 June 2019 at 12:41pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Chef – subject of an approved nomination – nomination application refused – review application withdrawn – unpaid work entitlements – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 22 November 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 9 January 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Chef with Tasne Enterprise Pty Ltd.

5. 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 of the position lodged by Tasne Enterprise Pty Ltd in relation to the applicant was not approved.

6. The relevant nomination was refused by the Department on 11 October 2017.  Tasne Enterprise Pty Ltd applied for review of the Department’s decision not to approve the nomination.

7. The applicants’ representative wrote to the Tribunal on 17 August 2018 to inform it that they no longer act on behalf of the applicants and provided the applicant’s written consent.

8. During the processing of the review, Tasne Enterprise Pty Ltd withdrew its application for review of the nomination in relation to the applicant.

9. On 26 March 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on, or respond to information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of the application for review of the nomination refusal made by Tasne Enterprise Pty Ltd, which the Tribunal explained is relevant because one of the requirements for the grant of the visa is that the relevant nomination has been approved.

10. The applicant wrote to the Tribunal on 4 April 2019 stating that she wished to attend a hearing.

11. The applicants appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the associated nomination has been approved.

    Nomination of a position

14. 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.

15. The applicant applied for the visa on the basis of a nomination of a position made by Tasne Enterprise Pty Ltd, which the applicant identified in the visa application form as having transaction reference number EGODDNI4YB (the associated nomination). Departmental records indicate that on 11 October 2017 the associated nomination was refused by the Department.

16. On 11 October 2017, the Department sent the applicant a natural justice letter inviting the applicant to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and consequently the delegate made a decision to refuse the application for the visas.

17. The applicants applied for review of the Department’s decision refusing to grant the visas. The nominator had also lodged a review of the decision not to approve the associated nomination, however, that review application has since been withdrawn. In response to the Tribunal’s invitation to comment on the information relating to the withdrawal of the review of the nomination refusal, the applicant requested to appear before the Tribunal at a hearing.

18. At the hearing, the Tribunal explained to the applicant the requirements in cl.186.223 and discussed with the applicant the evidence before it which indicates that the applicant does not meet that requirement. In response, the applicant stated that she started working for the business in 2014 and lodged the application for permanent residence when she became eligible. She stated that before lodging the permanent residence applicant she approached the owner and he assured her that everything would be fine. She stated that she had worked very hard for the business, including undertaking numerous hours of unpaid overtime. She stated that she was not paid any superannuation. The applicant stated that she became aware that the company had not paid the GST and consequently a bar was placed on the company and she had not become aware of this until after she had lodged the application for permanent residence. The applicant stated that she travelled overseas in 2018 for 6 weeks and after returning to Australia, she resumed work for her nominating employer despite being unwell.

19. The Tribunal acknowledged the applicant’s evidence and explained that it had no discretion in the circumstances as the nomination review had now been withdrawn and it appears that she has no prospect of meeting the requirement in cl.186.223(2). The applicant stated that the business was still operating though she was not sure if it had changed ownership. The applicant stated that she worked for the nominating employer until 2018 and after taking two weeks leave she got a letter from the owner stating that she had ceased employment. The applicant stated that the owner of the business had threatened her and she had to change her residence. The Tribunal explained to the applicant that if she had been threatened she should report it to the police. It also noted that she could seek advice from the Fair Work Ombudsman regarding any unpaid work entitlements.

20. The applicant stated that she has been in Australia for 11 years. She completed her studies in Australia, worked for an Australian business for the required period and her child was also born in Australia. She stated that in these circumstances, she is entitled to be granted a permanent residence visa.

21. The Tribunal explained to the applicant that while it accepted that she worked for the nominating employer for the requisite period, the issue in this case is not whether she had worked for the nominating employer but whether the nomination made by the employer in relation to her has been approved. The Tribunal explained to the applicant that in her case, the review of the nomination, in which she was identified for the position, was withdrawn by the nominating employer.  The Tribunal noted that in the circumstances, the Tribunal has no jurisdiction in relation to the nomination decision and has no power to compel the nominating employer to continue with the review of the nomination. The applicant stated that she would not be able to return to Bangladesh as she has been in Australia for a long time. She stated that she cannot get employment in Bangladesh, that she is not well and has back pain.

22. The Tribunal has had regard the applicant’s evidence and acknowledges the difficulties stated by her. However, as explained to the applicant, the issue which must be determined by the Tribunal is whether the relevant nomination has been approved. There is no provision in the legislation to take into account the applicant’s personal circumstances or the conduct of the nominating employer. In this case, the review of the relevant nomination has been withdrawn by the nominator and on this basis, the applicant is unable to satisfy the requirement in cl.186.223(2).

23. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 has not been met as a whole.

24. 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.

25. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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.