AMUTHA RASANTHAN (Migration)

[2017] AATA 311

AMUTHA RASANTHAN (Migration) [2017] AATA 311 (3 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AMUTHA RASANTHAN

CASE NUMBER:  1508934

DIBP REFERENCE(S):  BCC2014/2865522

MEMBER:Brook Hely

DATE:3 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 03 March 2017 at 1:59pm

CATCHWORDS

Migration – Nomination – Temporary Residence Transition stream – Adverse information – Actively and lawfully operating a business in Australia – Sold business – Sponsorship bar – No review application for sponsorship bar decision

LEGISLATION

Migration Regulations 1994, Schedule 2, r 5.19

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 on 12 June 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 29 October 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations because the delegate found that there was adverse information known to Immigration about the nominator and it was not reasonable to disregard that adverse information.

5. The applicant appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Status of the nominator: r.5.19(3)(b)

8. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

9. At the hearing, the review applicant informed the Tribunal that she had sold the relevant business relating to this nomination application in October 2015. She also confirmed that, since she sold the business, she has had no further dealings with the relevant business and has been occupying the duties of a housewife. She also confirmed that her husband was no longer involved with the business since it was sold and is now self-employed in an unrelated business endeavour. The Tribunal flagged with the review applicant’s agent its difficulty in seeing how the review applicant could meet the requirements of r.5.19(3)(b) given that she is no longer actively and lawfully operating a business in Australia. The agent conceded that this was correct. He noted that the review applicant had hoped to have another business up and running again by now but had not been able to do so due to the imposition of the Department’s sponsorship bar. The review applicant also noted that she hopes to one day open another restaurant, at which time she would hope to be able to again sponsor the nominated worker (Mr Jatinder Singh). However, it was clear from her evidence that these plans were highly speculative and there were no immediate plans or prospects of her actively and lawfully operating a business in Australia.

10. On the basis of the review applicant’s oral evidence at the hearing to the effect that she sold the relevant business in October 2015 and has subsequently had no further involvement with that business, or any other relevant business, the Tribunal is not satisfied that the nominator is actively and lawfully operating a business in Australia. It follows that the review applicant does not meet the requirements of r.5.19(3)(b)(ii).

11. Given the above, the requirement in r.5.19(3)(b) is not met.

    Future employment of the visa holder: r.5.19(3)(d)

12. Further or alternatively, regulation 5.19(3)(d) applies to certain nominees (those described in r.5.19(3)(c)(i)). The Tribunal is satisfied on the evidence before it that the nominee falls within this class, noting that he has held one or more Subclass 457 visas for a total period of at least 2 years; he has been employed in the position in respect of which the person holds the Subclass 457 visa for a total period of at least 2 years; and his employment in the position has been full-time, and undertaken in Australia.

13. For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. In the current circumstances, the review applicant has not owned the relevant business since October 2015 and has had no further involvement in the running of the business since that time. According to her oral evidence, the nominee (Mr Singh) has not worked for her since that time and she is not aware of how he has been supporting himself. Given these circumstances, noting in particular that the review applicant no longer runs the relevant business, the Tribunal is not satisfied on the evidence before it that the nominee will be employed on a full-time basis for at least two years. It follows that the review applicant does not meet the requirements of r.5.19(3)(d)(i).

14. Given the above findings, the requirement in r.5.19(3)(d) is not met.

    Conclusion

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

16. In making the above findings, the Tribunal acknowledges the written submission by the review applicant’s agent requesting that the Tribunal overturn the sponsorship bar that was imposed by the Department. However, as was confirmed by the review applicant’s agent at the hearing, no review application has ever been lodged with the Tribunal in respect of that decision and that decision is not the subject of the present review. The Tribunal therefore does not have jurisdiction in relation to that decision. Rather, the present review is confined to the delegate’s decision to not approve the nomination lodged by the review applicant.

    DECISION

17. The Tribunal affirms the decision under review to refuse the nomination.

    Brook Hely
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)     is made in accordance with subregulation (2); and

    (ii) identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)    is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)     both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)    all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)     the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)     the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.