Kamruzzaman (Migration)

[2019] AATA 1840

Kamruzzaman (Migration) [2019] AATA 1840 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Kamruzzaman
Mrs ZOHARA AKTER
Miss TASNIA ZAMAN

CASE NUMBER:  1806725

HOME AFFAIRS REFERENCE(S):           BCC2017/2253483

MEMBER:R. Skaros

DATE:12 June 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 12 June 2019 at 12:56pm

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– Café or Restaurant Manager – subject of an approved nomination – nomination application refused – review application withdrawn – unpaid work entitlements – decision under review affirmed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 8 March 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 26 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 with Tasne Enterprise Pty Ltd.

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 nomination of the position lodged by Tasne Enterprise Pty Ltd in relation to the applicant was not approved.

6. Tasne Enterprise Pty Ltd had applied to the Tribunal for review of the decision not to approve the nomination in relation to the applicant.

7. The applicants’ representative wrote to the Tribunal on 23 November 2018 to inform it that they no longer act on behalf of the applicants and provided the applicant’s written consent.

8. During the processing of the review, the Tribunal received information indicating that the review of the nomination relating to the applicant had been withdrawn.

9. On 26 March 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on, or respond to information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of the application for review of the nomination refusal made by Tasne Enterprise Pty Ltd, which the Tribunal explained is relevant because one of the requirements for the grant of the visa is that the relevant nomination has been approved.

10. The applicant wrote to the Tribunal on 29 March 2019 stating that he wished to attend a hearing.

11. The applicants appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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 associated nomination has been approved.

    Nomination of a position

14. 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. In addition, this criterion also requires that the nomination has been approved.

15. The applicant applied for the visa on the basis of a nomination of a position made by Tasne Enterprise Pty Ltd, which the applicant identified in the visa application form as having transaction reference number EGOEZXAW3H (the associated nomination). Departmental records indicate that on 2 February 2018 the associated nomination was refused by the Department.

16. On 2 February 2018, the Department sent the applicant a natural justice letter inviting the applicant to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and consequently the delegate made a decision to refuse to grant the visa.

17. The applicant applied for review of the decision in relation to the refusal of his visa. The nominator also lodged a review of the decision not to approve the associated nomination, however, that review application has since been withdrawn. In response to the Tribunal’s invitation to comment on the information relating to the withdrawal of the review of the nomination refusal, the applicant requested a hearing for the matter to attend.

18. At the hearing, the Tribunal explained to the applicant the requirements in cl.186.223 and discussed with the applicant the evidence before it which indicates that the applicant does not meet that requirement. In response, the applicant stated that after completing his studies in Australia, he applied for and was granted the temporary skilled visa. He stated that he has worked for the nominating employer for 4 years. He did not get superannuation and was not paid for his overtime. He stated that despite doing all that was necessary his visa application was still refused. The applicant stated that he has two children and wanted a future for them in Australia. The Tribunal acknowledged the applicant’s circumstances, but explained that to be eligible for the visa, he also had to have an approved employer nomination and that in this case, the review of the nomination in relation to him had been withdrawn.

19. The applicant asked if there was a remedy for the situation. The Tribunal explained to the applicant that he could seek advice from the Fair Work Ombudsman regarding any unpaid work entitlements, but that in relation to the employer nomination visa, he would not be eligible for that visa without the approval of the nomination.

20. The applicant stated that he was qualified in Australia and worked for an Australian business. He stated that his visa application was initially supported by the employer but he feels that he has been cheated. He stated that they have been under constant threat by the employer about the cancellation of their visas. The applicant stated that the business’ owner had indicated that the business was in liquidation or bankrupt, he has observed that the restaurant is still operating and is being operated by the same owner. He stated that the owner had let go of all the old staff, including himself, and new staff had been hired. He stated that he and his colleagues have suffered.

21. The second named applicant, who appeared quite upset, stated that they have done everything required to qualify for permanent residency and are law-abiding, hardworking and honest people. The applicant stated that he believed the nominating employer had orchestrated the whole situation so as to take advantage of him and his colleagues. He stated that they worked hard for the employer, were not properly paid and that the employer had not been complying with his legal obligations and instead choosing to go into bankruptcy. The applicant stated that the employer had been boasting about how he had outsmarted the system and got away with it.    

22. The Tribunal has had regard to the applicants’ evidence and acknowledges the difficult circumstances in which they find themselves. The Tribunal accepts that the applicant has worked for the nominating employer as claimed, however, the issue for determination in this review is not whether the applicant has worked for nominating employer for the requisite period, but whether the relevant employer nomination has been approved.  The Tribunal has no discretion in this matter and must make its decision in accordance with the relevant legislative provision.

23. The evidence before the Tribunal indicates that the relevant nomination, against which the applicant has made the relevant declaration in the visa application, has been refused. A review of the nomination refusal has since been withdrawn and in the circumstances, the applicant has no prospect of meeting the requirement in cl.186.223(2).

24. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 has not been met as a whole.

25. 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.

26. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that any of the secondary applicants meet the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    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.