Hoque (Migration)

[2019] AATA 3006

Hoque (Migration) [2019] AATA 3006 (22 May 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aswadul Hoque
Ms Abida Sultana
Miss Aksa Hoq

CASE NUMBER:  1837411

HOME AFFAIRS REFERENCE(S):          BCC2015/3938614

MEMBER:Katie Malyon

DATE:22 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2019 at 12:20 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – no discretion – nomination application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Singh v MIBP [2017] FCAFC 105

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 3 December 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 18 December 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

   Background

4. In the present case, the first named applicant – Bangladeshi national Mr Aswadul Hoque - is seeking the visa in the Temporary Residence Transition stream, to continue working in the nominated position of Cook with his employer Pristine Group Aus Pty Ltd (the Company).

5. The delegate refused to grant the visa on the basis that Mr Hoque did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application made by the Company was refused by the Department on 23 October 2017. As a result, the Department refused the applicants’ Subclass 186 visa applications.

6. On 2 April 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa applications. The Tribunal informed the applicants that their visa applications had been refused by the delegate because the Company’s nomination was refused and, further, the Company did not apply to the Tribunal for review of the delegate’s decision to refuse its nomination application. Accordingly, there is no approved nomination by the Company in relation to Mr Hoque. As a result, the position to which his Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

7. In its s.359A letter, the Tribunal requested the applicants provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. The applicants’ representative responded to the Tribunal on 16 April 2019 requesting additional time to reply to the issues raised in the Tribunal’s s.359A letter. The Tribunal invited the applicants to attend a hearing.

   Hearing

8. Mr Hoque appeared before the Tribunal on 17 May 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, although the Tribunal notes Mr Hoque used the interpreter on occasions only.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.   

9. At the hearing, Mr Hoque provided the Tribunal the following documentation:

   ·Diploma of Hospitality Management issued by Illawarra Business College to Mr Hoque dated 1 March 2010 and his Academic Transcript confirming subjects completed;

   ·Certificate III in Hospitality (Commercial Cookery) issued by The Illawarra Business College to Mr Hoque dated 17 May 2012;

   ·signed letter from Adam Skinner from the Bavarian Bier Café York confirming that Mr Hoque worked at the Bavarian Bier Café York restaurant as a casual Chef working 20 hours per week from May 2009 to 23 May 2012;

   ·signed letter from Abdul Alim, General Manager of Sunmoon Group Pty Ltd confirming Mr Hoque worked at the Banoful Restaurant & Sweets as a Cook at the Lakemba and Rockdale brunches (sic) from May 2012 to August 2015;

   ·signed letter from Abdur Rahim, General Manager of the Company dated 15 January 2019 confirming Mr Hoque worked at the Banoful Restaurant & Sweets as a Cook from August 2015 to July 2018; and,

   ·menu from Banoful Restaurant & Sweets in Lakemba dated February 2019 with photographs of a range of dishes.

10. At the commencement of the hearing, the Tribunal outlined the law as set out in in its s.359A letter and referred Mr Hoque to the Subclass 186 visa application made by him on 18 December 2017, a copy of which the Tribunal provided to him. The Tribunal noted the declaration made by Mr Hoque on the penultimate page of the application in which he declares that the position to which his visa application relates is a position nominated under r.5.19 of the Regulations and that he has provided details in his application of a nomination that has been lodged with the Department. The visa application form also expressly notes that the application ‘will not be valid if the details provided cannot be matched to a nomination that has (already) been lodged with the Department’. The Tribunal also observed that, on the first page of his application, Mr Hoque provided details of the Transaction Reference Number for the Company’s related nomination application.

11. In addition, the Tribunal noted that, as set out in its s.359A letter, the Company withdrew its nomination and, as a result, there is no approved nomination by the Company in relation to Mr Hoque. It observed that the Tribunal has no discretion and must apply the law for the reasons outlined in Singh’s case referred to in the Tribunal’s s.359A letter: it must therefore affirm the decision of the delegate to refuse the applicants’ Subclass 186 visa applications. Mr Hoque indicated his acknowledgement of the Tribunal’s observations in this regard. He added he wished to say something.

12. Mr Hoque then told the Tribunal about his employment experiences in Australia.  He thinks the Company’s nomination was refused because money is owing to the Australian Tax Office.  In his view, his employer wanted to ‘keep me in a kennel’ and really did not want him to get permanent residence anyway because then he would ‘be a free bird’.  He also made allegations of a former employer breaching employment law by not paying staff properly.  The Tribunal provided Mr Hoque with contact details for the Fair Work Ombudsman should he wish to pursue a formal complaint against his former employer.  Mr Hoque told the Tribunal that he is trying to apply for a Skilled Independent Subclass 189 visa or a Skilled Nominated Subclass 190 visa and has already submitted a skills assessment application to VetAssess for his skills as a Cook since he now has 6 years’ experience in Australia in the role.  He is looking at seeking State/Territory sponsorship in Tasmania, the Northern Territory or one of 5 regions in New South Wales.      

13. By way of final comment, Mr Hoque told the Tribunal, that he has lived in Australia for more than 10 years and ‘can’t go back’ to Bangladesh.  When questioned as to why he cannot return, Mr Hoque said ‘I don’t want to go back because I was a student leader for the BNP and, when the BNP lost power, I had to leave’.  He added that he has never mentioned this before but this is why he came to Australia as a Student visa holder.  Mr Hoque clarified that he does not consider himself to be a refugee: he is thinking of his family (his wife and child).  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the primary applicant, Mr Hoque, is the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Regulations.

    Nomination of a position

16. 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.

17. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (emphasis added);

    ·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.

18. The Company’s nomination application was refused by the Department and, subsequently, it did not seek review in the Tribunal of the delegate’s decision to refuse that nomination. In the circumstances, as the nomination application made by the Company for the position of Cook to which Mr Hoque’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.

19. Mr Hoque 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, the Direct Entry stream or the Labour Agreement stream.  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.

20. The applications of the second named and third named applicants – Ms Abida Sultana and Miss Aksa Hoq - are based on their being members of the family unit of a person who meets the primary criteria.  As Mr Hoque does not meet the primary criteria, the other applicants do not meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse the applications of the second named applicant and the third named applicant must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT – Extract from the Migration Regulations 1994

    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.

    oOOo