Bhasin (Migration)

[2023] AATA 2616

Bhasin (Migration) [2023] AATA 2616 (30 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sparsh Bhasin

REPRESENTATIVE:  Mr ROBBY SINGH SAWHNEY (MARN: 0964652)

CASE NUMBER:  2215964

HOME AFFAIRS REFERENCE(S):          BCC2021/137121

MEMBER:Nicola Findson

DATE:30 July 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 30 July 2023 at 9:35pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Café or Restaurant Manager – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 20 October 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 January 2021. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations, because there was no approved nomination. The delegate found that on 19 September 2022, the Department had refused a nomination made in relation to the applicant by his employer, Manjits Indian Restaurant (Mitali) Pty Ltd. As the applicant did not meet cl 186.223, he could not be granted a visa.

6. On 31 October 2022, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record. A copy of the applicant’s qualifications issued by an Australian education provider; a letter of reference from his nominating employer (Manjits Indian Restaurant (Mitali) Pty Ltd); and a bundle of payroll records, evidencing his employment as a Restaurant Manager with Manjits Indian Restaurant (Mitali) Pty Ltd since January 2017, also accompanied the review application.

7. The applicant appeared before the Tribunal, by telephone, on 15 June 2023 to give evidence and present arguments.

8. The applicant was represented in relation to the review. However, the representative 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 18 May 2023, the Tribunal wrote to the review applicant via his representative, pursuant to s 359A of the Act, and advised that its records indicated that Manjits Indian Restaurant (Mitali) Pty Ltd did not seek review by the Tribunal of the Department’s decision of 19 September 2022 to refuse its nomination of him.  The letter stated that there was currently no approved nomination of him by Manjits Indian Restaurant (Mitali) Pty Ltd, and that this information was relevant to the review because, subject to his comments or response, it indicated that the applicant was not the subject of an approved nomination by the same employer who nominated him, as required by cl 186.223, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review.

13. On 23 May 2023, the applicant sought an extension of time in which to comment on or respond to the Tribunal’s invitation.  In his request, the applicant indicated that he needed to check why his sponsor did not seek review of the Department’s decision to refuse its nomination, given he had been continuously employed in the position since the visa application process commenced. The Tribunal agreed to extend the period in which to respond, to the date of the hearing, scheduled for 15 June 2023.

14. At the hearing the Tribunal explained to the applicant 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 explained to the applicant that it does not have the discretion to waive the requirements of cl.186.223, as those criteria contain no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.  The applicant indicated that he understood the requirements for the visa.

15. The applicant told the Tribunal that he understood his visa application could not succeed.  By way of background, he explained that he had commenced working as a Restaurant Manager for Manjits Indian Restaurant (Mitali) Pty Ltd in 2017.  He told the Tribunal that he had worked very hard for his employer, and that he was very disappointed to learn it had not sought review of the refused nomination.

16. The applicant told the Tribunal that on discovering his employer did not seek review of the decision to refuse its nomination in relation to him, he had commenced the process of applying for a Subclass 491 visa application in the hope he could remain in Australia.  He also indicated that he had recently terminated his employment with Manjits Indian Restaurant (Mitali) Pty Ltd, and had immediately been offered work by another company performing the same role.

17. It is not disputed that the nomination of the applicant lodged by his employer, Manjits Indian Restaurant (Mitali) Pty Ltd, was refused on 19 September 2022.  There is no evidence before the Tribunal to indicate that the employer sought review of that decision (or attempted to lodge a new nomination).

18. Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl 186.223(2) and therefore cannot meet cl 186.223 as a whole.  He therefore cannot be granted a Subclass 186 visa.

19. 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.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    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:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.