Ghimire (Migration)

[2018] AATA 4246

Ghimire (Migration) [2018] AATA 4246 (11 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjil Ghimire

CASE NUMBER:  1814622

DIBP REFERENCE(S):  BCC2017/2276093

MEMBER:Karen Synon

DATE:11 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2018 at 9:48am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – subject of an approved nomination – sponsorship withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363B
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 1 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. 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 Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of ‘Chef’.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the sponsor ‘M.P.Z. NOMINEES PTY LTD’ withdrew its support for the sponsorship and asked that it be cancelled.

6. On 26 June 2018 the applicant was invited to a hearing to give evidence and present arguments on 31 July 2019.  On 30 July 3018 a request to postpone the hearing was made based on a medical certificate from Dr Saliya Kumarasinghe who stated that the applicant will be unfit to “continue his usual work or study” from Monday 30 July 2018 to Thursday 2 August 2018 inclusive.  On 31 July 2018 the Tribunal advised the applicant that the request to postpone the hearing was granted and it was rescheduled until 6 August 218.  A new hearing invitation was sent on 31 July 2018.

7. The applicant did not appear before the Tribunal on 31 July 2018 and no further request for a postponement was received before the hearing. On 7 August 2018, when no explanation for the applicant’s non-attendance at the hearing had been received, the Tribunal proceed to dismiss the application for review under s.363B(1A)(b) of the Migration Act. The applicant was sent a copy of this, via his authorised representative on 7 August 2018, and advised that he may apply to the Tribunal for reinstatement of the application, in writing, by 21 August 2018, explaining why he failed to appear and provide any other information he wanted the Tribunal to take into consideration when deciding whether to reinstate his application.

8. On 17 August 2018 the Tribunal received a request to reinstate the application with the provision of a confirmation of a ‘free initial assessment’ for a 20 minute appointment on Monday 17 September with ‘Back in Motion’ a health group providing physiotherapy, massage and pilates.  On 17 August 2018 the Tribunal contacted the applicant in writing, via his representative, relevantly stating:

   The Member has considered the applicant's request to reinstate his application for review however the claimed medical evidence provided by him of having booked a free 20 minute physio assessment in a month's time, does not provide any satisfactory reason for why he did not attend the scheduled hearing on 6 August.  The Tribunal will consider any further medical evidence provided by the reinstatement date of 21 August.

9. On 21 August 2018 the Tribunal received a further request to reinstate the application which was accompanied, relevantly, by evidence from Dr Yadigar Temel that the applicant was receiving medical treatment for the period Friday 3 August to Monday 6 August inclusive and would be unfit for his usual work or study.

10. On 22 August 2018 the Tribunal, after considering this medical evidence, determined to reinstate the application for review relevantly noting:

    The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 31 July 2018.  On 30 July 2018 a request to postpone the hearing was received on the basis of a medical certificate issued by Dr Saliya Kumarasinghe that the applicant “will be unfit for his usual work or study” for the period Monday 30 July 2018 to Thursday 2 August 2018 inclusive.  On this basis the hearing was postponed until 6 August 2018.  The hearing invitations dated 26 June 2018 and 31 July 2018 stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

    The Tribunal dismissed the application under s.362B(1A)(b) of the Act and the review applicant applied for reinstatement of the application within the prescribed period.  On 17 August 2018 the applicant provided a copy of having booked a free 20 minute physiotherapy assessment on 17 September 2018.  The Tribunal contacted the applicant the same day, via his authorised representative, to advise this future booking did not provide any satisfactory reason for why the applicant did not attend the scheduled hearing on 6 August but that it would consider any further medical evidence provided by the reinstatement date.

    After business hours on 21 August 2018, the applicant provided a number of documents of which relevantly one was a medical certificate issued by Dr Yadigar Temel (a different doctor to that who provided the first medical certificate) dated 2 August 2018 who stated that the applicant was receiving medical treatment for the period 3 August 2018 to 6 August 2018 and “will be unfit to continue his usual work or stay”.

    While the Tribunal notes that the medical certificate does not address the applicant’s capacity to attend a short 30 minute hearing and could and ought to have been provided to the Tribunal on 2 August 2018 when it was issued and before the scheduled hearing on 6 August 2018, the Tribunal has, with significant reservations, determined to reinstate the application.

11. The applicant appeared before the Tribunal on 11 September 2018 to give evidence and present arguments.  The hearing was conducted by telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages who attended in person at the Tribunal’s offices.

12. The applicant was represented in relation to the review by his registered migration agent.  He did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is cl.186.223.

    Nomination of a position

15. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

16. 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.

17. During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him.  As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination is no longer available to him as the employer M.P.Z. NOMINEES PTY LTD advised the department on 18 September 2017 that it had withdrawn its support for the sponsorship and asked that it be cancelled.

18. Invited to make any submissions the applicant said he knows it was withdrawn but does not know why.  He questioned if the employer should notify a nominee that it was going to withdraw a nomination.  He worked for this company (a café called ‘School of 7 Bells’) for a year and they were really happy with him.   He stopped working there in July 2016 and has not worked since.  This impact has been hard on him and he has been jobless for a long time.  He is still looking for another nominator.  He has a knee injury and that is why he could not appear in person at the Tribunal hearing.

19. Asked if he agreed that the nomination for the occupation of ‘Chef’ with M.P.Z. NOMINEES PTY LTD is no longer available to him, the applicant said yes, he is aware of this.  Asked if he understood that therefore the Tribunal could not make a decision in his favour the applicant said yes.  He declined the opportunity to give any additional evidence.

20. Based on the information before it in the primary decision and confirmed by the applicant’s evidence, the Tribunal finds that the applicant is not the subject of an approved nomination.  Therefore, cl.186.233 is not met.

21. 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

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

    Karen Synon
    Member