Gaba (Migration)

[2019] AATA 3388

Gaba (Migration) [2019] AATA 3388 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rakesh Gaba
Ms Samriti Samriti

CASE NUMBER:  1806375

HOME AFFAIRS REFERENCE(S):          BCC2016/4130465

MEMBER:R. Skaros

DATE:16 July 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 16 July 2019 at 2:55pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – availability of nominated position – business ceased operating – nominating entity deregistered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs on 19 February 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 7 December 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. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of cook with Copper Moon Pty Ltd ATF The Laughing Ganesha Trust.  

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(4) of Schedule 2 to the Regulations because the delegate was not satisfied that the position was still available to the applicant. The delegate noted that the restaurant at which the applicant was nominated to work had ceased operating and had permanently closed.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On review, the Tribunal received information indicating that Copper Moon Pty Ltd had been deregistered. This information was put to the applicant at the hearing under s.359AA of the Act.

8. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments.

9. The Tribunal notes that the Department’s file included a non-disclosure certificate under s.375A of the Act. The Tribunal informed the applicant of the existence of the certificate. The Tribunal also noted that it had formed the view that the certificate was not valid as it merely describes the nature of the documents covered by the certificate, stating that they contained information in relation to internal procedures, and did not provide a valid public interest reason for the non-disclosure. The Tribunal noted that the information covered by the certificate, which is not directly relevant to the issue in the review, which in his case relates to whether the position is still available to him, details allegations received suggesting that the applicant was working for someone else, and not the nominator. The information also details the Department’s attempts to verify documents submitted by the applicant in support of his claimed employment for the nominator.  In response, the applicant insisted that he had genuinely worked for the nominator and that he has submitted all the documents, including tax records, timesheets and lodged tax returns showing that he worked for the nominator between 2013 and 2017.

10. The Tribunal acknowledged the applicant’s evidence and noted that the issue now before it relates to whether the position is still available to him. The Tribunal does not consider that the information contained in the documents covered by the s.375A certificate to be relevant to the issue on which this case turns.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nominated position is still available to the applicant.

13. 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. In addition, this criterion also requires that the nomination has been approved and has not been subsequently withdrawn. Furthermore, the position must still be available to the applicant.

14. The evidence before the Tribunal indicates that the position, which was the subject of a nomination that was approved by the Department on 17 May 2017, is no longer available to the applicant.

15. In accordance with the procedure in s.359AA, the Tribunal informed the applicant that information before it indicates that the nominator ceased operating a business and that a recent search conducted by the Tribunal of ASIC’s database indicates that the nominating entity was deregistered on 25 March 2019. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if the Tribunal relied on the information it would go on to find that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet cl.186.223(4) and that in the circumstances the decision under review would be affirmed.

16. When asked if he required additional time to comment on or respond to the information, the applicant indicated that he would like to respond straight away. The applicant stated that he is aware that the company has closed down and that there is no position there for him. He stated that he requires some time because he has been in Australia for a long time and has worked for the nominator for 5 years. The applicant stated that he has the skills, qualifications and experience and would be able to operate a business in Australia. He stated that the nominator’s business closed down and that it was not anyone’s fault.

17. The Tribunal explained to the applicant that it did not consider it appropriate to delay making its decision on the review because there would be no merit in doing so. The Tribunal acknowledged the applicant’s evidence regarding his past employment, skills and residence in Australia and noted that it has no discretion to take into account his personal circumstances and must make its decision in accordance with the relevant legislative provisions. The applicant indicated he understood.

18. The issue before the Tribunal is whether the nominated position is still available to the applicant. The evidence before the Tribunal, as detailed above, is that the nominator is no longer operating a business and the nominating entity has been deregistered. On the basis of that evidence the Tribunal finds that the position for which the applicant was nominated is no longer available to the applicant. In the circumstances, the applicant does not meet the requirements in cl.186.223(4). Therefore, cl.186.223 is not met.

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.

20. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    Senior 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.