Bao (Migration)

[2021] AATA 5484

Bao (Migration) [2021] AATA 5484 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duy Bao
Ms Thuy Diem Thuong Vu

CASE NUMBER:  1818101

HOME AFFAIRS REFERENCE(S):          BCC2017/2007635

MEMBER:Nicola Findson

DATE:4 May 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 May 2021 at 10:54am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused–applicant is not the subject of an approved nomination – tribunal affirmed nomination decision – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 14 June 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 June 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411). 

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 applicant was not the subject of a nomination approved by the Minister.

6. The applicant applied to the Tribunal for review of the Department’s decision on 20 June 2018, and with the application provided a copy of the delegate’s decision record.

7. The applicants appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The applicants did not raise any concerns in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 reg 1.13A and reg 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. On 19 February 2021, the Tribunal wrote to the applicants via their authorised representative, pursuant to s.359A of the Act.  This letter followed a decision in a matter (1814794) which related to the nomination of the relevant position by the applicant’s employer, The Trustee for the Cheuk Family Trust.  The letter invited the applicants to comment or respond to information that the application for approval of the nominated position made by The Trustee for the Cheuk Family Trust was refused by a delegate of the Minister, and The Trustee for the Cheuk Family Trust had sought a review of the refusal decision, but the Tribunal had affirmed the decision under review. The letter indicated that this information, if relied upon by the Tribunal, would be the reason or part of the reason to affirm the decision made by the Department to refuse the grant of the visa, because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. On 3 March 2021, by way of response to the Tribunal’s letter, the applicants wrote to the Tribunal and indicated, among other things, that the applicant had worked for more than five years in the nominated position and given his best efforts as an employee.  He indicated that the cessation of his employment in the nominating business, as a consequence of the relationship of the owners (Mr and Mrs Cheuk) coming to an end and the applicant business subsequently ceasing to operate, was beyond his control.

14. At the hearing, the Tribunal reiterated to the applicants the requirements of cl.186.223.  In particular, the Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision. The Tribunal also explained that cl.186.311 requires secondary applicants to be members of a family unit of a person (the applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. The applicants indicated that they understood the requirements for the visa. 

15. The applicant told the Tribunal that he felt he was a victim of circumstances beyond his control.  He confirmed that in 2015 he had started working for The Trustee for the Cheuk Family Trust, which traded as the Mends Street Café,  and that he had continued working on a full time basis in this business until it ceased to operate as a consequence of the breakdown of the marriage of Mr and Mrs Cheuk in October 2019.  He said Mrs Cheuk established another restaurant (at the same premises) and he continued working in that business – ‘Saigon Eats’ – until June 2020.  The applicant told the Tribunal that after he had ceased working for The Trustee for the Cheuk Family Trust, he discovered that Mr Cheuk had not made any superannuation payments on his behalf during his employment. The applicant reiterated that he had given a great deal to his sponsoring employer, with an expectation that a permanent visa would ultimately be granted to him. He indicated that he and the second-named applicant had lived in Australia for over 12 years, and had spent a significant amount of money progressing this visa application.

16. The applicant told the Tribunal that he is a Chef with 8 years experience.  He said he is currently working for another restaurant in Perth and that this employer is willing to sponsor him.  However, he said that as the holder of a Bridging Visa, he is unable to apply for another visa in Australia.  He told the Tribunal that he is concerned that applying for another visa offshore will be very expensive and prolonged because of the Covid-19 pandemic.  He urged the Tribunal to lift the s.48 bar to enable him to remain in Australia and apply for another visa.

17. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

18. On the basis of the evidence before it, the Tribunal finds that at the time the applicants lodged their visa application on 6 June 2017, the applicant was the subject of a nomination application by The Trustee for the Cheuk Family Trust for the position of Cook.  The Tribunal further finds that the nomination application lodged by The Trustee for the Cheuk Family Trust was refused by the Department on 7 May 2018, and although The Trustee for the Cheuk Family Trust sought review of the refused nomination, on 10 December 2020, the Tribunal affirmed the Department’s decision to refuse the nomination.

19. As the nomination for the position has not been approved, the Tribunal finds that the requirement in cl.186.223(2) is not met.  It follows that cl.186.223 is not met.

20. 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.

21. The Tribunal also finds that as the applicant does not satisfy the primary criteria for the grant of the visa, the second-named applicant does not satisfy the secondary criteria for the visa.  Consequently, the second-named applicant does not satisfy cl.186.311 and the decision under review must be affirmed in respect of her.

22. The Tribunal acknowledges the difficult situation faced by the applicants, as the refusal of the visas means that it appears the applicants will be subject to the bar imposed by s.48 of the Act, which prevent them from making another application in Australia for an employer-sponsored temporary or permanent visa.  The Tribunal also acknowledges that the situation of the applicants is further complicated by the Covid-19 pandemic which has restricted international travel, and thus, the applicants ability to apply for another visa from outside Australia.  However, the Tribunal does not have the power to lift the bar imposed by s.48 of the Act.  Nor does it have any discretion to waive the requirements of cl.186.223 or cl.186.311, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.

    DECISION

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

    Nicola Findson
    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.