Habhab (Migration)

[2020] AATA 3543

Habhab (Migration) [2020] AATA 3543 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul Latif Habhab
Mrs Amal Bitar
Miss Cyrene Habhab

CASE NUMBER:  1728643

HOME AFFAIRS REFERENCE(S):          BCC2017/950338

MEMBER:Alan McMurran

DATE:14 August 2020

PLACE OF DECISION:  Sydney

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

Statement  made on 14 August 2020 at 11:50am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nominator 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

THE APPLICATION

1. This is an application lodged 17 November 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 October 2017 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 10 March 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.

   Delegate’s decision

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of a nomination which the Minister has approved. The nomination had been lodged by KHC restaurant Pty Ltd and which nomination was refused by the Department on 15 September 2017.

   Background

6. On 27 July 2020, the Tribunal wrote to the visa applicant under section 359A of the Act, inviting the visa applicant to comment or respond to information, the particulars of which were provided and which informed the applicant that on 24 July 2020, the Tribunal had determined it did not have jurisdiction to review an application by the nominator, KHC restaurant Pty Ltd for review of the refusal of the nomination, as that entity was deregistered and no longer lawfully trading.

7. On 3 August 2020, the visa applicant responded to the Tribunal and it is useful to set out his response in part as follows:

   “I – Abdul Latif Habhab – am writing this email as a last attempt to explain as to why KHC Pty Ltd no longer exists.

   To start off, KHC Pty Ltd was deregistered in 26 May 2019 and as explained in a previous email sent by Mr Luke Deeb with evidence provided of ASIC statements detailing when and how KHC Pty Ltd was basically renamed IBZ Pty Ltd. KHC (Which stands for King Henry’s Court Restaurant) was in business back in 2011 which is today known as Product of Italy which I (Abdul Latif) currently work under.”

8. On 5 August 2020, the Tribunal responded to the visa applicant and informed the applicant (in part) as follows:

   “The Tribunal notes receipt of your email response of 3 August 2020. The Tribunal in its letter dated 27 July 2020 asked you to respond to information that on 24 July 2020 the Tribunal determined that it does not have jurisdiction in relation to the nomination made by your nominating employer, KHC Restaurant Pty Ltd, as it is now deregistered and no longer lawfully trading. The effect of the Tribunal’s decision means that you are not the subject of an approved nomination. Without an approved nomination, your visa application cannot succeed.”

9. On 7 August 2020, the visa applicant responded and advised as follows:

   “to whom it may concern,

   in your previous email dated 5th of august your main concern was if KHC Pty Ltd was deregistered in 2020, therefore my nominator which KHC has ceased to exist, which mean my visa and nomination will cease to exist. that is right if KHC pty ltd just applied for my visa but that is not the case at the moment my case was taken to the tribunal because of couple of issues that happened back in 2017 where KHC did exist and was trading and i was still employed under my nominator company, but due to couple of reasons mentioned in my previous email changes has happened to the company which resulted in changing the name of the company to become IBZ which i have been employed under for the last 3 years. so please consider that my case has been taken to tribunal to discuss the rejection that happened back in 201 where KHC did exist back then. and we have all the support documents to show all the changes that we claim that KHC and IBZ did go through which resulted in the outcome that we have today. at the end of the day KHC and abdullatif has paid all the fees to apply for the visa and on top all the time and stress and effort to get to where we are today. Abdullatif had a great support to the business during all of the hard times especially when Covid 19 started and had great ideas to keep the business safe and survive and employ over 20 staff today. Abdulatif is a great asset and he did spend 7 years in Australia on top of the 5 years that he did spend back in 2000 where he finished his degree in Hotel Management from Australia and never had any problems with anyone.
   now i condifer Australia as my home and i do want to spend the rest of my life where i can grown and raise my kids in Australia. i have been a good person never did anything wrong to anyone please consider all the aspects in the case for the last 5 years if everthing get put together you will see that i have done everything by the book and i have worked so hard and i was loyal to a company that i want to see growing.

   in conclusion i am happy to ask the company i am employed by to show all the supportive documen to show that everything we claimed is genuine and legit.
   Thank you
   Abdulatif Habhab”

10. On 10 August 2020, the Tribunal sent a further invitation to the visa applicants to respond to the Tribunal’s concern and request for information. The tribunal advised, in part as follows:

    “The Tribunal has considered your response by email on 7 August 2020. Regulation
    5.19(3) provides that a nomination application for approval in the Temporary
    Residence Transition stream requires that the nominator, KHC Restaurant Pty Ltd
    (ACN: 150 369 118), is actively and lawfully operating a business in Australia.
    ·
    The evidence before the Tribunal discloses that KHC is no longer actively and
    lawfully operating a business in Australia and was de-registered on 29 July 2020.
    According to your response, the former business of KHC is now run by IBZ Pty Ltd
    (ACN: 615 851 673), which has employed you “for the last three years”. There is
    no provision in the Regulations to permit transfer or assignment of an approved
    sponsorship or nomination of an employee from KHC to IBZ (being a different
    employer).

    If the Tribunal is satisfied as to these facts, this would be the reason, or a part of the
    reason for affirming the decision under review to refuse the visa application, because
    KHC is no longer trading and you are now employed by IBZ which is not an approved sponsor or nominator.”

11. The applicant was asked to respond to this information by 12 August 2020, failing which the applicants would lose any entitlement to appear before the Tribunal to give evidence and present arguments. The Tribunal did not receive any further response. Accordingly, the Tribunal has proceeded to deal with the matter on the available information and without a hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.[1]

    [1] regulation 186.223 (2)

14. The Tribunal has had regard to the Department’s file, the Tribunal’s file and the ASIC recorded information, as regards the nominator.

    Nomination of a position

15. 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.

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. The Tribunal is satisfied and finds on the available information that on 24 July 2020, the Tribunal determined it did not have jurisdiction to continue the review of the nomination application. The effect of that decision affirms the Department’s decision refusing the nomination.

18. The Tribunal wrote to the visa applicants under section 359A of the Act and has had regard to the responses received from the applicant and as referred to above. The Tribunal finds that there is no information before it which demonstrates that the visa applicant is the subject of an approved nomination, or a nomination which is under review by the Tribunal or any further nomination application being considered on behalf of the visa applicant.

19. Therefore, cl.186.223 is not met.

20. 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.

    Secondary applicants

21. The secondary applicants are members of the family unit of the primary applicant.

22. As the primary applicant has unsuccessfully applied for the visa, and the secondary applicants have made a combined application with the primary applicant, it follows that the applications by the secondary applicants must also fail.

    DECISION

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

    Alan McMurran
    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.