GILL (Migration)

[2019] AATA 2831

GILL (Migration) [2019] AATA 2831 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanpreet Singh GILL

CASE NUMBER:  1819084

HOME AFFAIRS REFERENCE(S):           BCC2017/1981192

MEMBER:Alan McMurran

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 February 2019 at 1:35pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager, General – nominator no longer operated business – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 187.233(3), rr 1.13A, 1.13B, 5.19(4)

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 26 June 2018, to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager, General by a nominator, Adere Pty Ltd. The nomination was for the applicant to work at a Caltex garage at 89 Thomas Mitchell Drive, Wodonga in Victoria. The position was in regional Australia and supported by the regional certifier.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 (3) of Schedule 2 to the Regulations, because the Minster had not approved the nomination.

   Background

6. The applicant is a 24 year old citizen of India. The applicant arrived in Australia on a student higher education visa 573 on 6 August 2014.

7. According to a reference letter dated 10 April 2017 from the nominator, the applicant was employed by the nominator as a customer service representative at its Ambarvale site on 1 April 2016. The nominator apparently had the conduct of 6 Caltex service stations at the time, including at a site at Wodonga in Victoria.

8. While the applicant was completing his studies in Sydney, the nominator proposed to nominate the applicant to relocate to the nominator’s Caltex site at Wodonga in regional Victoria. The applicant agreed and the nominator lodged its application for the nomination while the applicant was still studying in Sydney and still working at the Ambarvale site.

9. The applicant completed a Diploma of Business on 13 October 2016, and an Advanced Diploma of Business at Canterbury Business College at Surry Hills in Sydney, between 11 April 2016 and 1 October 2017.

10. On 25 October 2017, the nominator returned its six service stations, including the Wodonga and Ambarvale sites, to the operation of Caltex directly. The details of how and why that occurred are not clear, however the nominator neglected to inform the Department of the change and that it no longer owned or operated the Wodonga site. At that time, neither the nomination application, nor this related visa application had been determined

11. The Department wrote to the nominator on 16 February 2018, setting out adverse information that it had received that the nominator “no longer operate” the Caltex Riverina business, which the nominator duly confirmed in writing. The nominator then formally withdrew the nomination of the applicant on 9 April 2018.

12. The Department sent a natural justice letter to the applicant on 11 June 2018, informing him that the nomination had been withdrawn. The applicant responded by an agent that he did not wish to withdraw his visa application, notwithstanding that the Department had advised him that without the nomination, his visa application could not be approved. Hence on 26 June 2018, and without having received any further information, the visa application was refused by the delegate.

13. The applicant appeared before the Tribunal on 22 February 2018 in a multi-application hearing list, to give evidence and present arguments. The Tribunal also received oral evidence from another Caltex employee, John Thalari, and from a witness for Caltex, Syed Asghar.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. For the purposes of this review, the Tribunal has available to it information on the Tribunal’s file including some electronic records available from the Department’s file[1], together with information and submissions made by the applicant at hearing.

    [1] BCC 2017/1981192 - 690601730

    Nomination of a position

17. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

18. In addition, this criterion includes requirements that:

    ·the person who will employ the applicant is the person who made nomination

    ·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 Applicant’s Evidence and Submissions

19. At the hearing, the Tribunal explained to the applicant three of the essential steps under the regulation 187.233, namely that there was an application for approval of the nomination that met the requirements, secondly that the person who will employ the applicant is the person who made the application and thirdly that the Minister has approved the nomination. The Tribunal told the applicant it had no discretion in relation to the application of the regulations.

20. The Tribunal asked the applicant why he had continued with the visa application after being informed that the nomination was withdrawn. The applicant said that he knew and understood that the nomination was withdrawn. He said he had spent four years at the same Caltex garage at Ambarvale. He said that two years of that period was with the nominator, who he believed was then a franchisee. He said in or about December 2016, he had discussed the nomination with the nominator who had agreed to sponsor him at one of its regional sites. He said that this had progressed and he had lodged his visa application in 2017 while still working at Ambarvale, intending to move to Wodonga when the Visa was approved. He said the nomination application had been supported by a regional certifier.

21. The Tribunal asked about the background as to why the nomination was withdrawn. The applicant said that Caltex had “within a half-hour” on the same day redeemed the six Caltex sites operated by the nominator. He said that it was due to no issue on his part and that he had “done nothing wrong”. He believed it was a result of some issues between the nominator and Caltex. In his email to the Tribunal on 17 December 2018, the applicant refers to concern by Caltex about the nominator “due to his misconduct and underpaying staff”. The Tribunal is unable to make any comment in that regard and notes there is no probative material before the Tribunal as to that issue.

22. The applicant said that Caltex had offered him a full-time position where had had remained for the past two years, working as a customer service attendant at Ambarvale. He said that until the Caltex issue arose, he had assumed everything was in place for his visa to be approved. He said that he was now employed by Calstores Pty Ltd (Calstores) after they took over the site from Adere Pty Ltd, and he produced current payslips for pay periods commencing 25 October 2017 up to October 2018.

23. The applicant said that Calstores had now offered him casual employment on a permanent basis. He said he was surprised and under some financial hardship when Caltex took over the stores in October 2017, so he had not sought advice. Instead, he took up the opportunity to continue employment at Caltex Star Mart Ambarvale with a new written agreement with Calstores which commenced on 25 October 2017. The applicant said he was doing well in that position and so had not sought employment elsewhere. In a recent submission to the Tribunal before the hearing on 12 February 2019, the applicant said that he had been recently offered a permanent full-time position as manager in a regional area, due to his hard work. On 21 February 2019, the applicant submitted a further email attaching a character reference from a Caltex business manager, Preet Badwal, who refers to the applicant as “this outstanding young man”.

24. At the hearing, the Tribunal heard from the two witnesses. The Tribunal asked the Caltex representative whether Caltex would sponsor the applicant; however Caltex said it is not their current policy to make nomination applications or to sponsor applicants. The witness said this was unfortunate as the applicant was a very valued employee. The second witness submitted that the applicant had been a good and loyal employee with whom he had worked casually and was not at fault in this process.

25. The applicant’s principal submission was that the Tribunal should give him an opportunity to obtain the visa and continue to work with Caltex. The Tribunal again explained to him that there was no discretion to ignore the requirements of the regulations, where no nomination had been approved. Following the hearing, on 24 February 2019, the applicant made a further submission to “please reconsider my circumstances and situation again as my nomination is refused due to no fault of mine.” The applicant asked the Tribunal to allow him “90 days and I can find a new employer for new nomination application”.

    Findings

26. The Tribunal is satisfied and finds that the position of retail manager and to which position the application relates is the position nominated in an application which seeks to meet the criteria set out in the subregulation 5.19(4) for the direct entry stream, and to satisfy the requirements of regulation 187.233. It is the requirement in the subregulation that the Minister has approved the nomination.

27. The Tribunal finds it is satisfied that the nomination by Adere Pty Ltd in the related nomination application was withdrawn by the nominator on 25 October 2017 and was not approved by the Minister.

28. The Tribunal further notes and finds it is satisfied that no review has been sought in respect of the refusal of the nomination and that no further or other nomination has been made on behalf of the visa applicant.

29. The Tribunal has some empathy for the applicant who is not a fault in this process and has remained loyal to his employment with Caltex. Notwithstanding he has been aware of the issue that his visa would not be approved since possibly October 2017 and then following receipt of the Department’s letter to him on 18 June 2018, which advised him to that effect, he has still not sought a nomination or sponsorship elsewhere and has remained with Caltex, employed now by Calstores.

30. The Tribunal finds it has no discretion in relation to this matter and the requirements of the regulations are mandatory. It follows that as the Minister has not approved the nomination which relates to this visa application, the visa application must be refused as cl.187.233 is not met.

31. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    187.233(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)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(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 no more than 6 months after the Minister approved the nomination.