B SANGHA HS SANGHA & K SANGHA (Migration)

[2018] AATA 1930

B SANGHA HS SANGHA & K SANGHA (Migration) [2018] AATA 1930 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  B SANGHA HS SANGHA & K SANGHA

CASE NUMBER:  1717892

DIBP REFERENCE(S):  BCC2017/1415147

MEMBER: R. Skaros

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2018 at 9:30am

CATCHWORDS
Migration – Approval of nominated position (employer nomination) – Holder of Subclass 457 visa – Employment period – Mitigating circumstances – Decision under review affirmed

LEGISLATION
Migration Regulations 1994, r 5.19, Schedule 2 cl 457.223

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 on 28 July 2017 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 18 April 2017. 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 the 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)(c) of the Regulations. The delegate was not satisfied that the nominee was employed in the position, in respect of which the nominee holds the 457 visa, for a total period of at least 2 years in the 3 years immediately before the nomination was made. The delegate noted that the nominee was not in Australia for periods totalling more than 12 months before the nomination was made.

5. The Tribunal received a copy of the delegate’s decision with the application for review.

6. In response to an invitation to provide information, the applicant provided various supporting documents, including financial documents, contract of employment, PAYG and wage payments for the nominee and a number of documents relating to the operations of the business and its approval as a standard business sponsor.

7. The Tribunal also received submissions from the representative explaining the reasons the nominee was outside Australia for a period of more than 12 months in the 3 years immediately before the nomination application. It was submitted that the nominee was only 2 weeks short of the 2 years employment requirement and that he is a valuable employee. 

8. The Tribunal requested further information regarding the nominee’s immigration history as the decision record had indicated that the nominee’s 457 visa was granted on 3 April 2013 for a period of 4 years which would have meant that at the time of the nomination, on 18 April 2017, the nominee was not the holder of a 457 visa.

9. On 19 April 2018 the representative wrote to the Tribunal advising that the applicant’s former migration agent lodged two nominations for the nominee. The first nomination was lodged on 18 October 2016 and the related visa application was lodged on 30 January 2017. The representative explained that the first nomination was refused on 12 April 2017, by which time the nominee’s 457 visa had ceased, and the second nomination, which is the subject of this review, was lodged while the nominee held a Bridging A visa. The nominee has not since held another 457 visa.

10. Mr Sangha appeared before the Tribunal on 24 April 2018 to give evidence and present arguments on behalf of the applicant.   

11. The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. This case turned on two issues. The first is whether the application for approval identifies a person who holds a Subclass 457 visa as required by r.5.19(3)(a). The second, is whether, in the 3 years immediately before the nominator made the application, the nominee has, as the holder of a 457 visa, been employed in the relevant position for a total period of at least 2 years and the employment in the position has been full time and undertaken in Australia: r.5.19(3)(c)(i).

15. The Tribunal discussed the above issues with Mr Sangha at the hearing. In response, Mr Sangha stated that the former agent had misled them about the process and they should have been properly informed about the second nomination. Mr Sangha stated that the nominee is a good worker and that he relied on him. The representative confirmed that the records provided to the Tribunal show that the nominee was a holder of a bridging visa A and not the holder of a 457 visa at the time of the nomination application. The representative indicated that the applicant’s former agent decided to lodge a fresh nomination after the first nomination was refused.

16. In relation to the requirement that the nominee be employed for a total period of 2 years in the 3 years before the nomination application, Mr Sangha explained to the Tribunal that the nominee remained overseas due to serious family circumstances, which included the death of a family member. He indicated that he agreed to grant the nominee extended leave because of these circumstances.

17. The Tribunal explained to Mr Sangha that there was no provision in the legislation to take into account any extenuating circumstances and that it had to determine on the evidence whether the requirements had been met.  Mr Sangha confirmed that he understood and reiterated that they were misled by the previous agent.

18. The Tribunal has considered the relevant evidence before it and finds, for the reasons that follow, that the requirements in r.5.19(3)(a) and r.5.19(3)(c) have not been met.

19. Regulation 5.19(3)(a) requires, among other things, that the application for approval identifies a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4). The Tribunal notes that the language of the provision indicates that the person identified in the nomination application must be a person who ‘holds’ a 457 visa. In this case, the application for approval identified Mr Sandeep Singh. At the time of the nomination application Mr Singh did not hold a 457 visa nor has he since been granted a 457 visa. On the evidence before it, the Tribunal finds that the application for approval did not identify a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4). Consequently, the Tribunal finds that the requirement in r.5.19(3)(a)(ii) is not met.

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

    Previous employment of the nominee: r.5.19(3)(c)

21. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

22. The nominee was nominated in the occupation Mixed Crop Farmer by the applicant. As this is not one of the occupations specified for the purposes of r.5.19(3)(c)(ii), the applicant does not meet r.5.19(3)(c)(ii) and the nomination must meet r.5.19(3)(c)(i) for the nomination to be approved.

23. The evidence before the Tribunal, which is not in dispute, is that the nominee was not employed in Australia in the position for which he held a 457 visa for a total period of at least 2 years in the 3 years before the nomination application. In the 3 years immediately before the nomination, the nominee was not in Australia for a total period of at least 2 years and the nominator confirmed at the hearing that he granted the nominee extended leave due to his family’s circumstances overseas. The Tribunal acknowledges that the applicant was only a few weeks short of meeting the 2 years employment requirement. The Tribunal also acknowledges the reasons given for why the nominee had to remain outside Australia for extended periods, including the issues relating to his children, family land dispute and the death of a close family member as detailed in the written submissions. However, as explained at the hearing, there is no provision in the legislation to take into account mitigating circumstances.  

24. As the nominee was not employed full time in Australia in the position for at least 2 of the 3 years preceding the nomination application, the Tribunal finds that the requirements in r.5.19(3)(c)(i) are not met.

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

26. 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.

    DECISION

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

    R. Skaros
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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.