GOYAL (Migration)

[2020] AATA 4141

GOYAL (Migration) [2020] AATA 4141 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HANISH GOYAL

CASE NUMBER:  1727323

HOME AFFAIRS REFERENCE(S):          BCC2015/1514149

MEMBER:Penelope Hunter

DATE:1 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 1 October 2020 at 11:31am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – nominated position ­­– Customer Service Manager – functions undertaken by applicant – availability of nominated position – current employer different to nominating business to which the visa application relates – nominator ceased business operations – 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 Immigration and Border Protection on 18 October 2017 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 May 2015. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager for his nominating employer A & J Enterprise Holdings Pty Ltd.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s position was that nominated in the application for approval.

6. The applicant appeared before the Tribunal on 25 June 2020 by telephone at a hearing to give evidence and present arguments. The Tribunal also received evidence from a witness, Mr Muhammad Nauman. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The representative of the applicant also participated in the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.186.223 as is set out in full as an attachment to this decision. Particularly, whether the applicant satisfies cl 186.223(1)(a) and cl. 186.223(4) of Schedule 2 to the Regulations. Clause 186.223(1)(a) requires that the position to which the application relates is the position nominated in application for approval that seeks to meet the requirements of subregulation 5.19(2). Whereas cl. 186.223(4) requires that the position still be available to the applicant.

9. One assessing the visa application the delegate found that the applicant did not meet cl. 186.223(1)(a) as it was found that the functions being undertaken by the applicant in the role conformed more to the functions of a store supervisor or a senior sales assistant. The delegate was not satisfied that the applicant was performing the functions of the nominated position of Customer Service Manager.

10. The applicant was nominated in the position of Customer Service Manager by A &J Enterprise Holdings Pty Ltd. The delegate sets out in their decision that the nomination by with reference RID:715576096, TRN:EGO7FE8YO5 and linked to the applicant’s visa application was approved on 25 May 2015. There is no evidence before the Tribunal that the nomination approval has been withdrawn.

11. Upon review the Tribunal has concerns as to whether the applicant satisfies cl. 196.233(1)(a) for a different reason. That is whether the position that the applicant is seeking to rely upon for the purposes of the visa grant is the position nominated in the application for approval by his nominator, A & J Enterprise Holdings Pty Ltd. Further the issue has arisen as to whether the position is still available to the applicant within the nominating employer.

12. Prior to the Tribunal hearing the applicant submitted the following material for consideration:

    i.Representative’s submissions dated 18 June 2020.

    ii.Payslips for the applicant from the week commencing 1 October 2017 to 3 July 2019, issued by A & J Enterprise Holdings Pty Ltd.

    iii.Payslips for the applicant from the week commencing 7 July 2019 to 10 June 2020, issued by the Trustee for the Huns Turramurra Trust.

    iv.Statutory declaration of Muhammad Nauman.

13. The documents and submissions of the applicant’s representative disclosed that from 5 July 2019 the applicant’s services transferred to the Huns Turramurra Pty Ltd as Trustee for the Huns Turramurra Trust.  When the Tribunal questioned this evidence it was claimed that the nominating employer had changed its name. It was submitted that the applicant was performing in the same role with the same nominator. The Tribunal also questioned the applicant about his functions as a Customer Service Manager and it was revealed that his role was no longer spread across eight or nine sites where his employer operated a business, but just that just two sites Turramurra and Camperdown were operated a 7-Eleven franchises by his employer. The applicant no longer had a role of Customer Service Manager for the franchises operated at Manly, Artarmon, Mosman, Drummoyne, Lindfield, Killara or Randwick. At the conclusion of the hearing the Tribunal raised with the applicant and his representative that it was not satisfied from the information contained on the payslips submitted, and the evidence as to the change in business structure, that the applicant was still working for the identified nominator and what had occurred was a simple name change. The applicant was further advised that the change was more than a change of name then the dispositive issue would be whether the applicant continued to satisfy cl. 186.223(1)(a) in respect of whether the position was the same as in the nomination or that the nominated position was still available to the applicant. The Tribunal discussed the provisions of cl.186.233(1)(a) and noted that critical to this provision was that the applicant was still relying on employment or position as nominated in the visa application. The Tribunal again received submissions that the position was the same and the nomination was continued with the current business operator. The Tribunal indicated that it would review all relevant evidence including the ABN and ACN details for the applicant’s identified employer and that any ongoing concerns would be put to the applicant in writing.

14. On 14  July 2020, the Tribunal wrote to the applicant pursuant to the provisions of s.359A of the Act, inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The particulars of the information were set out as follows:

    ·At the hearing on 26 June 2020 the applicant provided evidence that he had been employed in the position of Customer Service Manager since July 2019 by The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615).

    ·According to the visa application filed by the applicant the position to which the application relates is a nominated position with A & J Enterprise Holdings Pty Ltd (ACN 097 023 919) (ABN 66 097 023 919).

    ·The two entities are different businesses and there is no record before the Tribunal that the applicant’s current employer, The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615) has an approved nomination in place in respect of the applicant.

    The Tribunal explained the relevance of the information was that it disclosed that the applicant had changed his employer, and one of the requirements for the grant of an employer nominated visa is that the position with the nominated employer for the purposes of the application is still available to the applicant. It is also relevant because the position that the applicant now seeks to rely upon with The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615) is not that which to which the visa application relates, being the position nominated in an application for approval by A & J Enterprise Holdings Pty Ltd (ACN 097 023 919) (ABN 66 097 023 919). It was further explained that if it relied on the information that the Tribunal may go on to find that the applicant does not meet the requirement of cl.186.223(4) and cl.186.223(1)(a) of Schedule 2 to the Regulations and the decision under review may be affirmed.

15. The Tribunal received a comment from the representative for the applicant on 27 July 2020. In addition to submissions, the response included and ASIC extract of A & J Enterprise Holdings Pty Ltd (ACN 097 023 919), an ASIC extract of The Huns Turramurra (ACN 630 580 264), a letter dated 5 July 2019 addressed to the applicant from The Huns Turramurra Pty Ltd regarding transfer of employment, a letter dated 23 June 2020 from the Harpreet Singh confirming the applicant’s employment with the Huns Turramurra Pty Ltd.

16. The submissions of the applicant’s representative contained the following claims (in summary):

    i.The review by the Tribunal should be conducted up to the date of the delegate’s decision, 18 October 2017.

    ii.Despite the Departmental refusal the applicant had continued to be employed as a Customer Service Manager with the nominee company A & J Enterprise Holdings Pty Ltd up until the present date, his payslips had been submitted to the Tribunal to substantiate this fact.

    iii.The applicant nominator A & J Enterprise Holdings Pty Ltd had a name change to the Huns Turramurra Pty Ltd with effect from 5 July 2019. The company director remains the same, Mr Harpreet Singh.

    iv.The applicant was informed that his services had been transferred from A & J Enterprise Holdings Pty Ltd to the Huns Turramurra Pty Ltd on 5 July 2019, his duties as Customer Service Manager and annual wage remained the same.

    v.The director of the nominator company has high regard for the applicant and continued to employ him as a Customer Service Manager.

    vi.The issue of the nominator’s company name from A & J Enterprise Holdings Pty Ltd to The Huns Turramurra Pty Ltd ought not to be construed as though the applicant’s employment ceased with effect from 5 July 2019, because both A & J Enterprise Holdings Pty Ltd and The Huns Turramurra Pty Ltd are the same identity/employer with the same director. An inference that complies with company law.

    vii.It was submitted that the applicant had been employed continuously as a Customer Service Manager by the same nominator company.

17. The Tribunal has carefully considered the totality of the oral and documentary evidence and is not satisfied that the claims of the applicant and his representative are made out.

18. Firstly it is clear from the Schedule 2 to the Regulations that the provisions set out in cl. 186.223 are criteria that must be satisfied at the time a decision is made on the application. As the Tribunal is making a decision on the application de novo, the criteria in cl. 186.223 are to be satisfied at the time of the Tribunal decision not just at the time of the departmental decision.

19. Secondly, it is not accepted that the payslips submitted by the applicant substantiate the fact that he had continued to be employed by the nominator A & J Enterprise Holdings Pty Ltd. The payslips demonstrate the fact that from early July 2019, the applicant was paid by the Trustee for The Huns Turramurra Trust.

20. Thirdly, it is not accepted that the nominator A & J Enterprise Holdings Pty Ltd had a name change. The ASIC search submitted documents that the entity registered with the ACN 097 023 919, continues with the current name of A & J Enterprise Holding Pty Ltd. The ASIC records submitted by the applicant further corroborates the information put to the applicant in writing that The Huns Turramurra Pty Ltd has a different ACN 630 580 264, to A & J Enterprise Holdings Pty Ltd and that it was registered with that name on 13 December 2018. Pursuant to s.119 of the Corporations Act 2001, a company only comes into existence as a body corporate at the beginning of the day on which is registered. The ASIC details submitted reveal that not only is The Huns Turramurra Pty Ltd a different legal entity to the nominator, A & J Holdings Pty Ltd, but also that it was not in existence at the date that the relevant nomination was approved on 25 May 2015. While the it is not disputed that the company director remains the same, the Tribunal does not accept that means that it is the same identity or employer.

21. Fourthly, the letter submitted by the applicant dated 5 July 2019 from The Huns Turramurra Pty Ltd also clearly refers to a transfer of employment from that date, and that he will be engaged by a new entity. It does not confirm that it was a name change for the nominator and makes no reference to the nomination application.

22. Fifthly, the Tribunal is satisfied on the material before it that the applicant ceased employment with the nominator A & J Enterprise Holding Pty Ltd when the business operations were transferred to The Huns Turramurra Pty Ltd. The Tribunal is not aware that there is an inference within company law in Australia that these are considered the same identity/employer, and the applicant had not identified any such relevant legislative provisions. It is accepted that within workplace relations laws there are mechanisms for employee entitlements and length of service to be construed as continuous, however the Tribunal does not accept that this applies to nomination approvals pursuant to cl.5.19(3) of Schedule 2 to the Regulations.

23. It is accepted that while the visa application has been under review the applicant has continuously worked in a role identified as Customer Service Manager. It is also accepted that his salary has remained similar and he has continued to be principally based at the Turramurra 7-Eleven franchise. It does appear that the functions and duties of the applicant in this role have altered as he is no longer providing delivering management training to staff across eight stores but only two. However, most critical for the application under review is that on the material before it the Tribunal is not satisfied that the applicant continues to be employed by the nominator. It finds that the nominating company A & J Enterprise Holdings Pty (ACN 023 919) (ABN 66 097 023 919), is a different legal entity and different business to The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615). The position that the applicant is now relying on for the purposes of the visa application is with The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615). This is not the position with the approved nominator. This is not the position to which the application relates and was identified in an application for approval by A & J Enterprise Holdings Pty Ltd that met the requirements of cl. 5.19 of Schedule 2 to the Regulations when approved on 25 May 2015.

24. As disclosed to the applicant in the Tribunal’s letter of 14 July 2020, the Tribunal has been unable to locate evidence that The Huns Turramurra Pty Ltd has a nomination approval in place in respect of the applicant. The applicant has also not demonstrated that there is a current nomination approval in place for his current position within The Huns Turramurra Pty Ltd. The Tribunal does not accept the claims made by and on behalf of the applicant that the approval was transferred. The approval of a nominated position under cl.5.19 of Schedule 2 contains several requirements specific to the nominator, such as previous approval as a standard business sponsor, training requirements and commitments to ongoing employment of the visa applicant. It is not accepted that there are relevant provisions within the Act or Regulations that enable the approval to be transferred to another employer. In fact the Tribunal considers that the Regulations restrict the transfer of a nomination as in any event if there was a relevant subsequent nomination approval, it is considered that the requirement in cl. 186.233(1)(c) that the position be the position in the relevant declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 made in the application for the grant of the visa, could not be satisfied by a subsequent nominator.

25. It is a requirement that the position to which the visa application relates is the position that nominated in an application for approval that seeks to meet the requirements of cl.5.19 of Schedule 2. The applicant is seeking for the purposes of the visa grant under review to rely on a subsequent position of Customer Service Manager with the Huns Turramurra Pty Ltd. Although it may be the same occupation, the Tribunal is not satisfied that it is the same position. The Tribunal is not satisfied that the applicant meets the requirements of cl. 186.233(1)(a). Consequently it is also not the position in the relevant declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 made in the application for the grant of the visa, and cl.186.233(1)(c) could also not be satisfied. However having already found that the applicant does not meet cl.186.233(1)(a) it is not necessary to make a further finding on this.

26. The ASIC records provided by the applicant demonstrate that A & J Enterprise Holdings Pty Ltd still exists as a legal entity and as set out above there is no evidence that the nomination approval has been withdrawn for this employer. The Tribunal turned its mind to whether the applicant can still satisfy the visa requirements with A & J Enterprise Holdings Pty Ltd. However, having found that the applicant ceased employment with A & J Enterprise Holdings Pty Ltd on or about 5 July 2019, the Tribunal is not satisfied that there is a position within this employer for the applicant. The applicant has not demonstrated that he continues to be employed by A & J Enterprise Holdings Pty Ltd, or that it is the current business operator of the 7-Eleven Turramurra where he currently performs the functions of a Customer Service Manager. The evidence does not demonstrate, and the applicant has not established in evidence or submissions, that A & J Enterprise Holdings Pty Ltd intends to again employ the applicant or have a position for the applicant consistent with the nomination approval. Therefore the Tribunal is also not satisfied that in with respect to the approved nomination with reference RID:715576096, TRN:EGO7FE8YO5 and linked to the applicant’s visa application, that the applicant satisfies cl. 186.223(4) and the position is still available to the applicant. The Tribunal also finds that cl.186.233(4) of Schedule 2 to the Regulations is not met.

1. The Tribunal accepts the submission that the change in entity for the operation of the business 7-Eleven Turramurra was an event outside the control of the applicant. It is also accepted that he has invested several years in his current employment with the goal of a permanent visa. It is not disputed that the director of the relevant companies may think highly of the applicant as demonstrated by his continuous employment. However, the visa requirements contained in cl. 186.233 are not matters in which the Tribunal has a discretion.

2. Accordingly, the Tribunal finds that cl.186.233 of Schedule 2 to the Regulations is not met as a whole.

3. 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.

   Other matters

4. The Departmental file of the applicant contained a certificate issued pursuant to s.376 of the Act, dated 8 December 2017, in relation to certain TRIM records folios for which  it was claimed that disclosure would to be contrary to public interest because they contain internal process information. The Tribunal discussed the certificate with the applicant and his representative at the hearing. The applicant and his representative were advised that Tribunal had determined that the certificate was not valid, the certificate did not bear a signature or electronic signature of the delegate. Further internal process information was not a considered to be a proper basis for non-disclosure. As to the information, upon review of the records, it was internal emails between departmental officers, the substance of which was disclosed to the applicant with an invitation to comment on 15 June 2017, and again in the decision of the delegate. The Tribunal invited submissions from the representative for the applicant and the Tribunal’s finding was not disputed. The records related to a site visit at the applicant’s place of employment in May 2017. Any information relating to this site visit has not been material to the issues considered by the Tribunal, as discussed above, on review. The Tribunal accepts the claims by the applicant that the relevant site visit was very brief and the substance of the discussions had as related by him. It draws no adverse inference from this material.

   DECISION

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

   Penelope Hunter
   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.

   (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.