Dousa (Migration)

[2019] AATA 3002

Dousa (Migration) [2019] AATA 3002 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Petr Dousa
Ms Yee Ling Teo

CASE NUMBER:  1830126

HOME AFFAIRS REFERENCE(S):          BCC2016/4040706

MEMBER:Katie Malyon

DATE:23 May 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 23 May 2019 at 1:29 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Cook – unpaid superannuation – underpayment of wages and other entitlements – subject of an approved nomination – no discretion – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

CASES
Singh v MIBP [2017] FCAFC 105

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 9 October 2018 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 30 November 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

   Background

4. In the present case, the first named applicant – Czech national Mr Petr Dousa – is seeking the visa in the Direct Entry stream to work in the nominated position of Cook ANZSCO 351411.  He has a favourable skill assessment from Trades Recognition Australia dated 20 July 2016 for the occupation of Cook.

5. The delegate refused to grant the visas on the basis Mr Dousa did not meet cl.186.233(3) of Schedule 2 to the Regulations because the nomination application made by his employer, B.W.J. Food Co. Pty Ltd T/A Old City Kitchen and Bar (the Company), was refused.

6. On 2 April 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa applications. The Tribunal informed the applicants that the nomination application made by the Company which identified Mr Dousa as the nominee was refused by the Department on 29 August 2018 and, further, the Company did not apply to the Tribunal for review of the delegate’s decision to refuse its nomination: consequently, there is currently no approved nomination by the Company in relation to Mr Dousa. As a result, the position to which Mr Dousa’s Subclass 186 visa application relates cannot meet the criteria in cl.186.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

7. In its s.359A letter, the Tribunal requested the applicants to provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. Mr Dousa responded to the Tribunal’s letter on 15 April 2019. He provided an extensive submission.

8. By way of summary, Mr Dousa describes how, although he received payment for working 38 hours per week, the reality was he worked 45 hours a week, and was often asked to do jobs for which he was not contracted to do.  He even had to clean up faeces off the floor in the toilet.  After he been working for the Company for about 18 months, he discovered he had not been paid any superannuation, and nor had any of his colleagues.  Further, Company director Mr Hussary was extremely abusive and often screamed at staff, many of whom left crying.  Two members of staff resigned due to sexual abuse.  Mr Dousa said he put up with all of this because he dreamed of being able to live in Australia.  Although Mr Dousa expected his hard work and commitment to be rewarded, it was not. 

9. In addition, Mr Dousa states that, when the Department requested additional documents from the Company such as BAS and tax returns, Mr Hussary promised all documents would be submitted.  However, just over a month later, he found out that the Company had not lodged a BAS return for the last 2 years.  He had a meeting with Mr Hussary and was told at the business is in debt.  He felt heartbroken.  When he asked to take annual leave, this was denied. 

10. Mr Dousa opines that he has been absolutely used as cheap labour, emotionally bullied, forced to do whatever he was asked to do for almost 2 years and had to financially struggle.  He almost lost his relationship with his partner Ms Teo due to enormous pressure from Mr Hussary.  Mr Dousa also states that he has lodged a formal complaint with the Australian Taxation Office (ATO) regarding unpaid superannuation and that his solicitor has lodged a complaint with the Fair Work Ombudsman (FWO) regarding underpayment of wages, failure to be paid annual leave and overtime as well as being forced to do many jobs outside his role of Cook including cleaning toilets, running the bar and waiting tables when wait staff did not show up. 

11. Further, Mr Dousa states that he has done everything the Australian Government asked of him: he has paid tax and got involved in the community.  He is regular blood donor to the Red Cross.  His girlfriend Ms Teo and he often provide food parcels to homeless people in Sydney’s CBD.  They have also travelled all over NSW and Western Australia and made efforts to understand and assimilate to the Australian culture.

12. Mr Dousa also states that he has spent more than $60,000 studying in Australia (Certificate IV in Business, Diploma of Business, Advanced Diploma of Management and Diploma of Leadership) as well as a further $8,000 on a registered migration agent who just took his money.  He has made a complaint against his former representative with the Office of Migration Agents Registration Authority and, subsequently, the former agent has tried to blackmail him into changing his story: email evidence (of these blackmail threats) is available. 

13. By way of concluding comment, Mr Dousa states that he has made so many friends here, has passed the English language test and now feels this is his home.  He requests the Tribunal consider his circumstances and fix the injustice.  It is his aim to become a citizen of Australia.

    Hearing

14. The applicants appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from the applicants’ friend, Cameron Langton.

15. Mr Dousa confirmed the evidence in his statement provided to the Tribunal is correct.  He also provided the Tribunal with assorted documentation including, relevantly:

    ·a copy letter from the ATO dated 31 August 2018 acknowledging receipt of a complaint in relation to failure by the Company not to have paid Mr Dousa’s superannuation guarantee contribution and a copy email from an ATO’s Client Engagement Officer dated 16 January 2019 in relation to progressing the complaint;

    ·a copy letter from Lynch Meyer Lawyers addressed to the Company in relation to Mr Dousa’s claims of unpaid wages and unpaid entitlements on termination as well as confirmation of a complaint being lodged with the FWO; and,

    ·a copy email from a Customer Solutions camp officer with FWO indicating that Mr Dousa is owed $5,600 and inviting the Company’s comment.

16. Asked why he did not leave the Company’s employment, Mr Dousa said that he had signed a contract and, initially, liked the job and the people he was working with.  It was only later that his boss (Mr Hussary) forced him to do inappropriate things (such as clean toilets) and that he realised the Company had not pay him properly.  Mr Dousa now believes his boss just tried to keep him there for 2 years whilst the permanent residence application was being processed by the Department.

17. The Tribunal outlined the law and referred Mr Dousa to the Subclass 186 visa application made by him on 30 November 2016 in which he declares that he has provided the Department with details of the related nomination application. The Tribunal noted that, as set out in its s.359A letter, the Company nomination was refused on 29 August 2018. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.233(3) of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.  The Tribunal observed that it has no discretion and must apply the law for the reasons outlined in Singh’s case.  Mr Dousa acknowledged the Tribunal’s comments: he said ’yes’ and then added that ‘the whole experience has changed his life because for the 2 years’ that he worked for the Company ‘he struggled financially as well as emotionally’. 

18. The second named applicant, Ms Yee Ling Teo, is Mr Dousa’s partner.  Ms Teo told the Tribunal she ‘just wants to be next to’ Mr Dousa ‘and support him’. 

19. The couple’s friend, Mr Langton, told the Tribunal that they have all lived together in Neutral Bay for some time.  He said he has watched what has happened to his friend in this time and feels it is ‘so unjust’.  Mr Langton said Mr Dousa ‘did everything that was right, including having spent thousands of dollars undertaking studies here only to be used as cheap labour and be exposed to observing the sexual harassment of colleagues’.  He added that ‘my friend felt trapped because the application for permanent residence had been lodged’.

20. The Tribunal provided the applicants with a copy of its brochure Immigration Assistance with the details of where they may obtain immigration advice from pro bono service providers. 

21. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in the present case is whether the first named applicant, Mr Dousa, is the subject of an approved nomination as required by cl.186.233(2) of Schedule 2 to the Regulations.

    Nomination of a position

23. Clause 186.233 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 Direct Entry stream that identifies the primary visa applicant.  The position must be the one that was the subject of the declaration required to be made as part of the visa application.

24. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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.

25. The Company’s nomination application was refused by the Department and, subsequently, it did not seek review in the Tribunal of the delegate’s decision to refuse that nomination. In the circumstances, as the nomination application made by the Company for the position of Cook to which Mr Dousa’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.233(2) of Schedule 2 to the Regulations. Therefore, cl.186.233 of Schedule 2 to the Regulations is not met.

26. Mr Dousa has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream.  No claims have been made in respect of the other visa streams, the Temporary Residence Transition stream or the Labour Agreement stream.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

27. The application of Ms Teo is based on her being a member of the family unit of a person who meets the primary criteria.  As Mr Dousa does not meet the primary criteria, Ms Teo does not meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse the application of the second named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    Schedule 2

    ..

    Part 186

    ..

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (4A)   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.

    (5)    The position is still available to the applicant.

    (6)    The application for the visa is made not more than 6 months after the Minister approved the nomination.

    oOOo