Doddikindi (Migration)

[2019] AATA 2150

Doddikindi (Migration) [2019] AATA 2150 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chandrashekar Reddy Doddikindi
Mrs Ashwini Pundra

CASE NUMBER:  1730655

HOME AFFAIRS REFERENCE(S):           BCC2016/2682012

MEMBER:Alan McMurran

DATE:11 April 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 11 April 2019 at 12:57pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position of Database Administrator (ANZSCO 262111) – sponsor nomination application refused – no discretion to waive requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994, Schedule 2, r 1.13, cls 186.311, 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 28 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 13 August 2016. 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

5. 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 Database Administrator (ANZSCO 262111).

6. The applicant is a citizen of India who first arrived in Australia on a student visa on 11 October 2009. The applicant has a Bachelor degree in Science, Business or Technology from university in India (2004-2008), and AQF certificate IV in Information Technology from Canterbury Business College in Sydney (2011-2012). The applicant left Australia in December 2010 to return to India, and obtained a Masters degree in Science, Business or Technology from Osmania University (2012-2014). The applicant returned to Australia in December 2014, where he obtained a 457 visa and commenced work with a sponsor, Python Technologies (the sponsor), as a database administrator.

7. On 13 August 2016, the applicant brought this application for a permanent employer sponsored visa, in the same nominated role of Database Administrator. An application made by the sponsor for approval of the nomination was processed by the Department, and on 24 October 2017 the nomination application was refused. No review was sought in respect of the nomination refusal by the sponsor. Consequently, on 28 November 2017, the Department delegate refused the applicant’s visa application.

8. The delegate refused to grant the visas because the applicant did not meet cl.186.223 (2) of Schedule 2 to the Regulations, because the applicant was not the subject of a nomination which had been approved by the Minister.

9. On 7 December 2017, the applicant lodged this application for review.

10. The applicants were invited to appear before the Tribunal on 28 February 2019 to give evidence and present arguments. The applicant was unable to appear on the hearing date which was subsequently cancelled.

    Tribunal history and Information provided

11. When the visa applicant lodged this application on 7 December 2017, the Tribunal responded the same day providing him with details for processing the application and inviting the applicant to provide “any other material which you believe supports your application, including a statement explaining why you disagree with the department’s decision”.

12. At the time of lodgement, the applicant provided his statement set out in a letter dated 5 December 2017, referred to below, and which attached financial information including a Taxation Assessment notice for the year ended June 2015, ANZ bank statements and wage records.

13. On 5 December 2018, the Tribunal wrote to the applicant under section 359 of the Act requesting information be provided by 19 December 2018. The letter included the following paragraph:

    “Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa.”

14. On or about 20 December 2018, the applicant submitted a letter (undated) and attached a letter from the sponsor dated 6 December 2018. The applicant’s submission included the following:

    “Please do note,

    ·I have been working for the company for close to 4 years, which is now barred due to its mismanagement.

    ·Being an employee of the company, I can not control its management except my own work.

    ·I have got super payment and pays through them and still getting super payments sorted out from same company.

    ·I request AAT members to look into my application as I have not done anything wrong and if company is barred due to its wrong doings, I should not be punished as I have put 4 years of my life in this company.

    ·If AAT members think that I should get other nomination attached to this file for same position from other company who can sponsor me then please do let me know and give me 8-12 weeks of time to find one as I am sure with my experience and knowledge I can find one.”

15. The attached letter from the sponsor, addressed “To whom it may concern”, stated by way of explanation for delaying processing of the applicant’s superannuation that the sponsor “suffered heavy business losses”.

16. Following receipt of the applicant’s submission, on 4 February 2019 the Tribunal invited the applicants to a hearing on 28 February 2019. The Tribunal notes the applicant was unrepresented, and on 27 February 2019 (at 2:50 AM) the applicant sent an email to the Tribunal explaining he had fallen and injured his back and would be unable to attend the hearing for the next day.

17. An officer from the Tribunal spoke with the applicant at 1:26 PM on 27 February 2019, and the applicant said he would call back about the hearing for the next day, depending upon his medical condition. The Tribunal sent a letter by email to the applicant at 3:01 PM explaining that the hearing (which was in a multi-application hearing list) had not been postponed, but requesting the applicant to attend by telephone. The applicant responded at 4:14 PM explaining that he was on painkillers and owing to his physical situation requested a postponement for 10-15 days “till the time I recover and able to attend”.

18. The Tribunal considered the postponement request further which was granted and the applicant’s hearing cancelled. A Tribunal officer telephoned the applicant on 28 February 2019, before the scheduled hearing, and left a voice message advising him of the postponement. This was followed up with an email on 28 February 2019 at 9:14 AM confirming the telephone advice from the Tribunal.

19. On 28 February 2019, following the hearing postponement, the Tribunal sent a letter to the applicant under section 359A of the Act which included the following:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision is under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·On 24 October 2017, the nomination lodged by ISMAIL,AHMER ARIF, was refused by a delegate of the Minister for home affairs.

    The above information is relevant because one of the requirements for the grant of the employer nomination visa is that the nomination of the position to which the application relates has been approved. If the tribunal relies on the above information it may find that the relevant nomination in relation to you has not been approved. The circumstances, you would not meet the requirements of cl. 186. 223 (2) and the decision under review would be affirmed.”

    The applicant was invited to give comments or respond to the information provided, in writing, by 14 March 2019. The letter informed the applicant that if the comments or response was not received within the allowed period, the applicant will lose any entitlement to appear and give evidence and present arguments.

20. The Tribunal has reviewed its file and notes that no response in writing was received (or at all) from the applicant. No further request has been received for a postponement.

21. The Tribunal has therefore proceeded to finalise this review on the basis of the information already provided and pursuant to section 360 (3) of the Act which provides for the Tribunal to make a decision on this review without taking any further action to obtain information.

22. The Tribunal has had regard to the electronic records provided from the Department’s case file[1] and the Tribunal’s case file which contains the written submissions from the applicant, together with the application.

    [1] BCC2016 2682012

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

    Nomination of a position

24. 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.

25. 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 r.1.13A and r.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.

26. In his letter in submission made 5 December 2017, the applicant sets out his employment history with the sponsor, commencing 2 December 2014. The applicant was working at the sponsor’s premises at Belmore in Sydney, pursuant to his subclass 457.

27. The applicant said things were going well for the “first 14 months or so”, although the applicant thought the “company’s operations were always somewhat different than usual workplace operations”. The applicant said that “at no point during last 4 years ever I have created any issues with higher management and never complained them for any regular payments, non-payment of taxes or non-payment of super or even working more than 12-14 hours a day on many occasions”. The submission goes on to state that “as an employee of the company have done everything right within my rights and gone well above my capacity to adjust all demands of the company and its operations.” The applicant further submits that “I wanted to adjust and keep going with all it takes to get me towards working in the company and get to possible permanent residency.” He also states “the owners and higher management of the company of course had different views and ideas which we innocent staff were not been aware of till almost very end.”

28. In his submission the applicant says the Tribunal should give him an opportunity to find another employer and “not to punish us for carrying out our duties and responsibilities over period of almost 4 years in adverse business conditions in the hope of securing better life for family here.” The applicant submits that he is being a victim of the sponsor’s “wrong business ethics” and for those reasons should not be deprived of an opportunity to remain in Australia and “add value to society”.

29. The Tribunal notes the applicant does not dispute the findings concerning the sponsor, and maintains his ignorance and innocence in respect of any “wrong business ethics” of the sponsor, and as a result of which he finds himself without an approved nomination.

30. Since the cancellation of the hearing on 28 February 2019, and the further request for information from the applicant on that date, which has not been responded to, the Tribunal has no further details upon which it can rely. The Tribunal finds it is satisfied the applicant is not the subject of a nomination which the Minister has approved with the sponsor. The Tribunal has no knowledge or information as to the current occupation or details concerning the applicant and his family, since 28 February 2019. The Tribunal is not aware of any subsequent nomination or application for sponsorship approval in favour of the applicant, and no further application has been made to defer proceedings or await the outcome of any such sponsorship or nomination application.

31. The Tribunal finds it has some empathy for the applicant, who has worked diligently during the period of his 457 visa and with the sponsor in the nominated occupation. It was due to no fault of the applicant, that the nomination was not approved by the Minister.

32. The Tribunal has no discretion to waive the requirements in the regulation 186.223, a copy of which is annexed to this decision record. If the applicant is not the subject of a nomination which the Minister has approved, then the related visa application cannot succeed.

33. As the Minister has not approved the related nomination, cl.186.223 is not met.

34. 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.

    Secondary Applicants

35. The second named applicant is the applicant’s partner, who was made a combined application with the applicant for approval of the visa. It is a requirement of the regulation, 186.311, that the second named applicant is a member of the family unit of the primary applicant who holds a Subclass 186, granted on the basis of satisfying the primary criteria.

36. As the applicant is not the holder of a Subclass 186, the second named applicant does not meet the requirement of being a member of the family unit of a person who holds a Subclass 186, and the requirements of the criterion 186.311(a) is not met.

37. The second named applicant’s application under review must also result in the delegate’s decision being affirmed.

    DECISION

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

    Alan McMurran
    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.