Jethara (Migration)

[2019] AATA 870

Jethara (Migration) [2019] AATA 870 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aadil Mohammed Yusuf Jethara

Mr Aadil Mohammed Yusuf Jethara
Ms Shabnam Aadil Jethara

CASE NUMBER:  1819934

HOME AFFAIRS REFERENCE(S):           BCC2017/2343344

MEMBER:Alan McMurran

DATE:1 March 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 01 March 2019 at 12:58pm

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– Temporary Residence Transition stream – café or restaurant manager – subject of an approved nomination – nomination withdrawn – decision under review affirmed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 Home Affairs on 19 June 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 30 June 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 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meet cl.186.223 (2) of Schedule 2 to the Regulations because the Minister has not approved the nomination, which was withdrawn.

   Background

6. The applicant is a 36 year old Indian citizen, married to the second-named applicant. The applicant has a Diploma of Business from the Australian Institute of Professional Education, and a Masters of Arts degree from North Gujarat University.

7. The applicant has been working as a Restaurant Manager at the Tandoori Hut restaurant in Enmore Sydney, since 16 April 2014 (prior to that, part-time from September 2013), and has been studying and working in Australia since about January 2007.

8. The applicant sought this review following the withdrawal of the nomination application by the nominator’s business owner, Mustaq Barkat, on 17 May 2018 and subsequent refusal by the Department on 19 June 2018.

9. The Tribunal wrote to the applicant under section 359 of the Act on 6 December 2018 requesting information. The applicant was requested to provide evidence of an approved nomination or pending application for review of a refusal decision by 20 December 2018.

10. The Tribunal letter set out in part as follows:

    “Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a subclass 186 must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.”

11. The applicant responded by email on 14 December 2018, stating he would respond to the request on 5 January 2019, as “my employer is on holiday” and “my boss knows everything about my paper work regarding my visa”.

12. On 7 January 2019, the applicant responded by email saying:

    “Last Friday my employer came back from holiday and I talk with him regarding my nomination letter. After ours discussion we decided that we want to meet you face-to-face any time when you feel comfortable. So I and my employer waiting for your appointments confirmation…”

13. On 4 February 2019, the Tribunal invited the applicant to appear and attend a hearing in a multi-application hearing list, at 9.30am on 28 February 2019.

14. The applicants did not appear. The Tribunal received an email from the applicants at 7:45am on 28 February 2019. The applicants said in the email:

    “Hi there

    disappointing to tell you that I couldn’t make the interview because my employer went to Pakistan emergency work therefore not make sense to come for interview by myself coz without his efforts can’t justify therefore you can make decision basis your rules…”

15. Section 360 (2) (b) of the Act provides that the Tribunal may deal with the application without inviting the applicant to appear or give evidence and present arguments, if the applicant consents to the Tribunal deciding the review without the applicant appearing before it. The Tribunal having invited the applicant to appear in this case, and then noting the applicants’ request for the tribunal to “make decision”, has proceeded to deal with the matter on the available evidence and information contained in the Department’s file and the Tribunal’s file.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

    Nomination of a position

18. 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.

19. 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.

    Findings

20. The applicant is the person nominated in an application for approval of a 186 visa, in the temporary residence transition stream, which seeks to meet the requirements of sub-regulation 5. (19) (3).

21. The applicant was granted a temporary work skilled visa (457) on 10 February 2014. The applicant was then nominated by Mustaq Barkat to work for him on 30 June 2017, and which nomination was withdrawn by the nominator on 17 May 2018.

22. On the information before the Tribunal, the applicant has not made another substantive visa application, and the nomination application by Mustaq Barkat is not subject to a review. The applicant has not provided any further information to the Tribunal concerning his personal work circumstances other than as referred to above and since filing this review application.

23. The Department refused to grant the visas on 19 June 2018 as the applicant was not the subject of an approved nomination by the Minister. Despite the opportunity to attend hearing and provide further information, the applicant has elected not to do so.

24. The Tribunal has no discretion in the matter and in circumstances where the applicant does not have an employer, who has successfully nominated him for a position, the Tribunal cannot remit the matter for further consideration and to do so would be futile in any event as there is no nomination outstanding or approved.

25. The Tribunal is satisfied that cl.186.223 is not met.

26. 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 Applicant

27. The Tribunal is satisfied that the secondary applicant is not the member of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

28. As this is a criterion that must be satisfied at the time of decision being made on the application, the secondary applicant does not meet the criteria for the grant of the visa.

    DECISION

29. 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.