GROVER (Migration)

[2018] AATA 5518

GROVER (Migration) [2018] AATA 5518 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr ROHIT GROVER
Mrs MADHAVI GROVER

CASE NUMBER:  1814185

HOME AFFAIRS REFERENCE(S):           BCC2017/1310697

MEMBER:Denise Connolly

DATE:13 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 13 November 2018 at 4:14pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – nomination refused – application for review of nomination refusal withdrawn – employer sold business – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 27 April 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 April 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. 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 Cafe or Restaurant Manager.   

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination referred to in cl.186.223(1), of which the applicant was the subject, was not approved.

6. The applicants appeared before the Tribunal on 13 November 2018 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

9. 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.

10. 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.

11. The applicants’ visa application was made on the basis that My Curry Rules Pty Ltd nominated the position Cafe or Restaurant Manager and identified the applicant to work in that position.

12. The applicant when making the application for review provided documentation relating to My Curry Rules Pty Ltd and his employment at that restaurant.

13. The applicant also has provided to the Tribunal a copy of the delegate’s decision record. It records that the nomination referred to in cl.186.223(1), lodged by My Curry Rules Pty Ltd was refused on 14 March 2018. Accordingly the delegate found that the applicant did not meet cl.186.223(2) because the nomination had not been approved by the Minister.

14. On 18 September 2018 the Tribunal wrote the Department, unders.359A of the Act, providing the applicants with an opportunity to comment on or respond to certain information which it considered would, subject to their comments or response, be the reason, or part of the reason, for affirming the decisions under review. The particulars of the information are as follows:

    a.on 23 August 2018 My Curry Rules Pty Ltd withdrew its application for review of the Department’s decision to refuse to approve the employer nomination it had made in relation to the applicant.

    b.On 28 August 2018 the Tribunal found that it no longer had jurisdiction to review the Department’s decision not to approve the employer nomination made by My Curry Rules Pty Ltd in relation to the applicant.

15. The Tribunal explained that this information is relevant because one of the requirements for the grant of the visa is that the nomination of the position to which the application relates has been approved. The Tribunal explained that if it relied on this information it would find that the applicant does not met the requirements of cl.186.223(2).

16. In response the applicants provided a written submission in which they state that they were unaware that the nomination had been withdrawn by the employer/sponsor. The employer/sponsor had refused to provide to the applicants details of their tax returns and superannuation. The employer/sponsor also refused to refund a loan provided to him by the applicant.

17. Prior to the hearing the applicant’s provided a written submission in which they state that they wish to recover a loan given to the sponsor, Mr Arvil Jain. They provided bank statements showing outgoing transactions. They stated that the sponsor had refused to refund the loan provided by the applicant. They were unaware that the nomination had been withdrawn and they were not notified that the employer had sold his business. They also claimed that the employer had failed to pay their tax and superannuation for the last financial year. The employer had verbally advised staff that the restaurant would be undergoing renovation and asked that they take their annual leave. They provided financial documentation for My Curry Rules Pty Ltd, their own bank statements and ATO documentation.

18. At the hearing the Tribunal explained to the applicant that it was considering the issue of whether all of the requirements of cl.186.223 are met. It noted that the nomination application, of which the applicant was the subject, nominating the position Cafe or Restaurant Manager, lodged by My Curry Rules Pty Ltd, was refused by the Department. It noted that My Curry Rules Pty Ltd lodged an application for review of that decision however it subsequently withdrew that review application. It explained that on the basis of the material before it, the nomination application of which the applicant was the subject has not been approved and now cannot be approved. It explained therefore that the applicant does not meet cl.186.223(2). It explained that this information was set out in the s.359A letter sent to the applicant on 18 September 2018. It explained that it does not have any discretion to waive the requirements of.cl.186.223.

19. The applicant indicated that he understood the Tribunal could not make a favourable decision given the nomination application had been refused and would not be reviewed. He explained that he stopped working for the sponsor in June 2018. The applicant asked that the Tribunal give the applicants more time to find another sponsor and try to recover the loan and owed superannuation from the sponsor, Mr Jain. The representative asked that the Tribunal postpone its decision to give the applicants more time to try to recover the money from Mr Jain. The Tribunal explained that it would not postpone its decision because finding another sponsor would not result in the Tribunal being able to make a favourable decision. It also raised a concern as to whether the applicants would be able to recover the loan and the owed superannuation in the foreseeable future. It explained that it did not think it was appropriate to postpone making its decision in these circumstances as there was no indication of when the applicants might be successful in recovering the money owed.

20. The Tribunal finds, on the basis of the evidence before it, that the application for approval of a nomination in the Temporary Residence Transition stream, in which the applicant was identified, has not been approved. Accordingly the applicant does not meet the requirement in cl.186.223(2).

21. Therefore, cl.186.223 is not met.

22. 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.

23. Since the applicant does not meet cl.186.223, the second named applicant is unable to meet cl.186.311(a) which requires that she is a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

    DECISION

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

    Denise Connolly
    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.