Haque (Migration)

[2023] AATA 4173

Haque (Migration) [2023] AATA 4173 (4 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Nasirul Haque
Ms Rubna Akter
Master Rushad Raviv Haque
Master Ruwayfi Raid Haque

CASE NUMBER:  2110292

HOME AFFAIRS REFERENCE(S):          BCC2016/3234175

MEMBER:Alan McMurran

DATE:4 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2023 at 7:14pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – café or restaurant manager – nominator’s business ceased operating – applicant not working in nominated occupation – employer’s personal injury and applicant’s immigration detention – employer waiting for applicant to be granted visa before reopening business in new premises – position not still available – applicant currently employed by another company, with some casual work for nominator’s second business – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.212, 186.223(4), 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 11 August 2023 for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, Mr Mohammad Nasirul Haque (primary applicant) and Ms Rubna Akter and their two children, as third and fourth-named applicants (collectively the secondary applicants), are all citizens of Bangladesh. The applicants applied for the visas on 29 September 2016. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, the secondary applicants, 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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.212 and cl 186.223(4) of Schedule 2 to the Regulations, because the information available at that time demonstrated that the nominator’s business was no longer operating, nor was it located at the designated business address.

6. The delegate also found that information showed the applicant was working as a delivery driver, and not in the nominated occupation. As a consequence, the delegate found that the position to which the visa application relates was no longer available for the applicant nominee.

7. The applicants appeared in person before the Tribunal on Monday 4 December 2023 to give evidence and present arguments. The Tribunal received oral evidence from the primary applicant and from the second named applicant, Ms Akter. No issue arose concerning the Tribunal’s jurisdiction in respect of any of the applicants.

8. The applicants were unrepresented for the hearing.

   Decision

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

   Background

10. On 27 October 2023, the Tribunal sent a letter to the applicant’s then representative inviting comment or response to information about the application. The applicants were advised that information before the Tribunal indicates the nominator, Barakah International Pty Ltd trading as “Bombay Grill”, had permanently closed its business.

11. The applicant was also advised that information demonstrates he was no longer working in the nominated role as a café or restaurant manager for the nominator.

12. On 10 November 2023, the applicant responded and advised that he was now acting for himself and the secondary applicants. He also provided a typed statement of the same date, which set out an explanation.

13. The applicant wrote in his response to the Tribunal that the nominator, by its business owner, Mr Mohammad Uddin (“the employer”), had informed him that his position was “still available to me”. He also stated that the nominator company “did not cease to trade”. In his statement, the applicant explained that the employer suffered a personal injury and was unable to continue running the business. The employer informed the applicant that a position would be available for him “if I get my visa approved”, in which event the employer would “start up the restaurant business in a new premises”.

14. In addition, the applicant submitted a copy of a letter dated 4 April 2021 from the employer. The letter states that the employer “confirmed that the position for the nominee Mohammad Nasirul Haque in the nominated occupation of café or restaurant manager 141111 is still available”.

15. The applicant’s migration history is quite complex as set out in the Department file and not fully repeated here. It includes information that shows the applicant first arrived in Australia on 10 April 2007 as a student. He married the second named respondent in Bangladesh on 24 September 2010. The second named applicant arrived in Australia on 14 April 2011. The applicant’s two children were born in Australia on 5 May 2015 and 11 August 2019 respectively. The applicant’s movement record from the Department shows that he has remained resident in Australia with his family since 21 August 2014.

16. The nominator is currently a registered corporation carrying on business in Australia. It owns two business names, “Bombay Grill” and “DESI DELIVERY”. No current information has been produced from the nominator, and which did not give evidence in the proceedings for this visa application. Tribunal enquiries of the regulator, ASIC, shows the nominator was registered on 17 June 2009 and remains registered. It further shows the business name, DESI DELIVERY, is owned by the nominator and was registered on 12 March 2019.

17. The applicant also provided to the Department, with the application on 29 September 2016, a copy of an employment “Letter of Engagement” between himself and the nominator dated 19 April 2021.

    Evidence from the hearing

18. Both the applicant and the second named applicant gave evidence. They chose to give their evidence in English and which appeared to be without any difficulty. An interpreter however was present in the English and Punjabi languages, available as each witness might require.

19. The parties indicated they were ready to proceed and did not require any adjournment. The applicant thought all relevant information had been provided for the Tribunal’s review. The parties confirmed on completion of the hearing that they had experienced no difficulties understanding the proceedings or with any interpretation.

20. The Tribunal explained the basis for the delegate’s decision. The applicant indicated he  understood the reason, that the business had ceased, or “paused” as he expressed it. He sought to explain in his own words what had happened. He said the nominator’s business had closed for two reasons. Firstly, that the owner/employer had suffered a personal injury in an accident affecting his legs and could no longer run the business himself. Secondly, that the applicant had been placed in immigration detention for a period in 2018, which left him unable to assist the employer and to manage the restaurant business. He said his detention had happened quite suddenly and he had been unable to give his employer prior notice.

21. He said subsequently he was released in 2018 from detention by the Minister, on compassionate grounds, by which time the nominator’s business trading as “ Bombay Grill” had closed. He said around that time in 2018 after his release, he had met with the employer who had informed him if he could obtain a visa he would consider to reopen the business. He said that at the time when he spoke with the employer, this visa application was still under consideration and not decided until 26 July 2021, so in that time after his release, he had no employment. The applicant then sought other employment.

22. He said he had obtained employment with another company, Sonoma Baking Co (Sonoma) trading out of Alexandria in Sydney. He said he now works full time for that business, 38 hours per week and is paid at the rate of $31 per hour. He said that this is his current employment at the date of the hearing.  

23. He said that the nominator had also started another business in 2019, doing catering with Indian food, styled as DESI DELIVERY. He agreed to do casual deliveries for the employer from time to time and as and when required, and in addition to his job with Sonoma. He was paid an hourly rate by the employer for that work, which he said occupied him once or twice per week, and which he still continues when or as requested.

24. He said he works occasionally for the employer but without any written agreement or contract. He does deliveries as and when requested for DESI DELIVERY on a casual basis, but not every week. He said his job with Sonoma is “permanent” and pursuant to a written contract of employment. He said that he has no outstanding applications for another visa, and has not been sponsored or nominated by Sonoma or any other entity or person.

25. The applicant was asked what he intended. He responded that “if I get the business visa, I will work for him”, meaning the nominator. He said the employer has offered to “re-employ me if I get the visa”, so that the nominator can consider opening a new restaurant for the applicant to manage. At present however, the nominator does not have an operating restaurant. The nominator still conducts the business, DESI DELIVERY, which the applicant described as a “catering business”. He agreed he is not a café or restaurant manager. He noted that he is trained as a chef.

26. The applicant was asked if he had any further submissions. He referred to cl 186.212 of the Regulations. He argued that because the regulation states: “the position to which the application relates will provide to the applicant the employment referred to in the application for approval” that on securing the visa, the nominator “will” provide him with the employment referred to in the application, as a café or restaurant manager. He submitted that if the employer is still willing to re-employ him, then the regulation requirement is met.

27. The applicant also heard evidence from Mrs Akter. Mrs Akter had provided a detailed statement on the eve of the hearing and provided a written copy. It attached some corroborating text messages in respect of the statement contents, and help she asserts she has personally offered to students seeking employment.

28. She gave evidence about her employment in Australia. She explained her initial work with a BUPA aged care facility and then as an Assistant in Nursing, after she became qualified. She explained how she had assisted in finding staff for the facility as explained in her statement, from 2013 and up until 2015 when she left.

29. She then worked for another aged care facility after 2015, at Glenfield in Sydney. She said she stopped working in 2021, and has started her own online clothing business “Barcode Shoppe”. She said she is attempting to grow that business and from which she earns a modest income. She said she manages that business from their home in Sydney. She said she would like to remain in Australia and buy a restaurant and ultimately a home. She said she is also efficient in the kitchen herself, and can do catering as a business.

30. She also gave evidence that she has not seen her family in Bangladesh since 2014 and is anxious for them because of her parents’ health. She said she would like to visit them and then return to Australia.

31. She explained that they had not sought assistance for their migration issues because it was too expensive and they had already spent a significant amount of money on legal representation in the past.

    CONSIDERATION OF CLAIMS AND EVIDENCE WILL

32. The issue in the present case is whether the applicant meets the requirements for the visa. If any one requirement is not met, the decision-maker is not required to consider any other criteria that might remain for consideration.

33. The secondary applicants are dependent for their visas on the outcome of the primary applicant in his application for the visa.

34. The Tribunal explained that it had no discretion in relation to the application of the Act and the Regulations. The issue for the Tribunal was a factual determination on whether or not the applicant was employed or will be employed in the role of café or restaurant manager for the business and as related to the nomination application.

    Employment will be provided

35. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.

36. The Tribunal has listened to the applicant’s argument that he meets the criterion so long as he will be employed by the nominator in the role nominated if he obtained his visa. For the reasons which follow, the Tribunal rejects this submission.

37. The regulation clearly states the position must be the position to which the application relates. In this instance as set out in the application, the position is for a café or restaurant manager working in a business styled as “Bombay Grill”. The related business for the purposes of the application was located at an address at 162 Norton Street Leichhardt in Sydney. As confirmed by the applicant at hearing, the related business is no longer trading at that address and has ceased operating. It is therefore reasonable to conclude the position no longer exists as there is no restaurant business to which the position ‘relates’.

38. The applicant confirmed at hearing that he has no current employment with the nominator and works for the employer in a new business styled as DESI DELIVERY as a delivery driver. He stated that he does not have any written employment agreement in place with the nominator other than the agreement produced for the Department with the application, and dated 19 April 2021, and which he agreed has ended when that business ceased to operate.

39. The Tribunal finds on this information that there is no “position to which the application relates” operating as a café or restaurant manager, and at the designated location, and where the applicant might otherwise have been employed by the nominator.

40. The Tribunal is unable to speculate on the available information that the position of café or restaurant manager “will” become available, if and when the applicant obtains the visa. On the contrary, the evidence is that the nominator is now running another business, DESI DELIVERY, which does employ the applicant as a driver, but not in the nominated role at the specified location. According to the ASIC record, the delivery business operates from premises at or near Granville in Sydney. The restaurant formerly at Leichhardt is closed.

41. The Tribunal is satisfied that the applicant cannot meet the requirement in cl 186.212 because there is no position of café or restaurant manager available and related to the nomination and which will provide employment for the applicant in the nominated role.

42. On a matter of interpretation, in this Tribunal’s view, it is not the process for determining a visa outcome that a business might at some future time make a position available, and for which a visa is then granted to a nominee on that possibility, and where no commencement date for the visa can be stated in the absence of an existing business relative to the nominated occupation.

43. If the business was not operating at the time of the nomination application, then the nomination would not have been granted or approved in the first place. The applicant has explained why the business has since ceased operating, but the explanation, although helpful, does not relieve the applicant of the obligation to meet the criterion. And as previously indicated, the Tribunal has no discretion in the matter.

44. The Tribunal has not accepted the applicant’s submission and argument as to the meaning of the relevant clause.

45. On the available information the Tribunal finds that cl 186.212 is not met.

    Other criteria

46. Clause 186.223(4) was also referred to in the decision record. On the basis of the available information, the delegate found that the visa application must provide, and that the position must continue to be available for the visa applicant.

47. Cl 186.223 states:

    (4) The position is still available to the applicant.

48. On the information available at the time of this decision, the circumstances as regards the position and the nomination for the applicant have not changed since 2018. That is, as set out above, the restaurant business ceased operating in 2018 and has not resumed its café and restaurant business, notwithstanding that the nominator has started another business as a caterer in Indian food. The Tribunal accepts the applicant’s oral evidence corroborating the information available to the Tribunal and finds accordingly.

49. The applicant has also confirmed in evidence that he has no employment agreement for the position of Café or Restaurant Manager in place with the nominator. The employer’s letter submitted by the applicant on 4 April 2021 has not been updated, and there is nothing in evidence to demonstrate the employer intends to meet that proposal or offer of availability for the position as was made in 2021.

50. The letter of engagement tendered by the applicant and dated 19 April 2021, after the offer letter referred to in the preceding paragraph, was provided to the Department to support the visa application. At that time however, as conceded by the applicant at hearing, the business had ceased to trade in 2018 and his employment had ended before that agreement was made. It was anticipatory apparently for a visa if granted, but not reflecting the actual employment situation at the time. It appears that the nominator had not informed the Department of the changed circumstances, and which had affected the applicant’s employment before the visa outcome was known.

51. The Tribunal finds on the evidence that there is no employment agreement still available. The employer’s offer in 2021 for a position of café or restaurant manager was not for any current or existing position. The applicant, and the Tribunal, accepts that the position does not exist and the applicant has confirmed that there is no current letter of engagement because there is no current restaurant business.

52. The Tribunal has found therefore on the information that there is no current café or restaurant business operated by the nominator, and no current position is “still available” as a Café or Restaurant Manager for the applicant as at the time of this decision, and as required by the criterion.

53. Accordingly, on the basis of the available information, cl 186.223(4) is not met.

    Secondary applicants

54. Secondary criteria apply to applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

55. Clause 186.311 requires that the secondary applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and who made a combined application with the primary applicant.

56. As the primary applicant does not satisfy the criteria for the visa, the secondary applicants who are members of the family unit, cannot meet the criteria for the grant of the visa.

    CONCLUSION

1. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream.

2. No claims have been made in respect of the other visa streams.

3. 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

4. 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.