KAUR (Migration)

[2019] AATA 3107

KAUR (Migration) [2019] AATA 3107 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lakhwinder Kaur

CASE NUMBER:  1821605

HOME AFFAIRS REFERENCE(S):          BCC2017/2169605

MEMBER:Katie Malyon

DATE:8 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 08 May 2019 at 1:23 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream ­– Café or Restaurant Manager ANZSCO 141111 –  nomination not approved – sponsoring company closed down – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, cl 186.223, r 5.19(3)(c)(i)(A)

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 6 July 2018 to refuse to grant the applicant, Ms Lakhwinder Kaur, an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Kaur applied for the visa on 20 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).  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.  In the present case, Ms Kaur is seeking the visa in the Temporary Residence Transition stream.

4. The delegate refused to grant the visa on the basis Ms Kaur did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by her employer, Katermate Pty Ltd (the Company), was refused by the Department.  A copy of the delegate’s decision to refuse Mr Kaur’s visa application was provided to the Tribunal.

   Background

5. Ms Kaur was nominated to fill the position of Café or Restaurant Manager ANZSCO 141111 with the Company.  However, the Company’s nomination was refused by the Department on 6 June 2018.  As a result, the Department refused Ms Kaur’s Subclass 186 visa application.  The Company sought review of the delegate’s refusal of its nomination application (Matter No. 1818538).  On 5 March 2019, the Tribunal made a decision that it did not have jurisdiction to review the delegate’s decision refusing the Company’s nomination.

6. On 2 April 2019, the Tribunal wrote to Ms Kaur pursuant to s.359A of the Act inviting her to comment on, or respond to, information which would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse her Subclass 186 visa application. The Tribunal informed Ms Kaur that a differently constituted Tribunal had made a decision that it did not have jurisdiction to review the delegate’s decision to refuse the Company’s nomination application and so the Company’s nomination for the position proposed to be filled by her has not been approved. As a result, the position to which her 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 (Singh’s case), this is a ‘once off’ process.  The Court observed in Singh’s case that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet these to criteria because the new nomination would not be the one in relation to which the visa applicant made the declaration in their visa application regarding the related nomination and provided the relevant transaction reference number. 

7. In her response to the Tribunal’s s.359A letter, Ms Kaur indicated that, for 2 years prior to lodging her Subclass 186 visa application, she worked at the Masala Master restaurant which was operated initially by Taste of Creations Pty Ltd (Taste of Creations) but then, later, by the Company.  She said that her ‘employer changed his company name from Taste of Creations to Katermate’ but it was the ‘same employer and same restaurant’.  Ms Kaur added that her employer assured her that not only was she eligible for a Subclass 186 visa nominated by the Company but also that ‘there will be no problem’ with her visa because she was working ‘in the same restaurant and the same position’. 

   Hearing

8. Ms Kaur appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.  At the hearing, she provided the Tribunal the following documentation:

   ·signed letter from Vikas Kumar, Director of Katermate T/A Masala Master, dated 23 September 2018 confirming that Ms Kaur has worked at the Masala Master restaurant as a Manager from 23 April 2015 to date;

   ·ASIC company statement for Taste of Creations Pty Ltd ACN 163 625 938 confirming that Vikas Kumar owns all 300 shares in the company and is Taste of Creations’ only Director and Company Secretary;

   ·ASIC company statement for Katermate Pty Ltd ACN 611 747 543 confirming that Vikas Kumar owns the sole share in the company and is Katermate’s only Director and Company Secretary; and,

   ·extract from the Department’s Policy and Procedure Manual in relation to the 2 year employment requirement for the purposes of r.5.19(3)(c)(i)(A) of the Regulations. Highlighted in the extract is the following text:

   There may be applications for the Temporary Residence Transition stream where the nominator has not been the nominee’s sole standard business sponsor during the whole required 2 year period.  In these cases, work undertaken with any entity other than the most recent standard business sponsor may still be considered towards the 2 year requirement if the nominator can demonstrate that the nominee has actively perform the duties of the position for the required 2 years despite a change of the employer.  This may occur in situations where the current standard business sponsor has undergone business restructure / takeover / sale / closure and may have changed their ABN / ACN / name, which required a new standard business sponsor approval.  That is, there must be some connection between the most recent standard business sponsor and any previous standard business sponsor/s of the nominee to be counted towards the 2 year requirement.

9. In oral evidence at the hearing, Ms Kaur echoed the claims in her statement provided to the Tribunal in response to its s.359A letter. She also confirmed that, after arriving in Australia to pursue studies as the holder of a Student visa, she was initially sponsored for a Subclass 457 visa by Taste of Creation for 18 months from 22 April 2015 to 22 October 2016. Then, she was successfully sponsored by the Company and her most recent Subclass 457 visa was granted on the 10 November 2016 for 18 months to 10 May 2018. It was during the period of her second Subclass 457 visa that she applied for a Subclass 186 visa nominated by Katermate.

10. The Tribunal acknowledged that, based on the ASIC searches for Taste of Creations and the Company provided at the hearing, it did appear to be the case that the scenario outlined by Ms Kaur regarding her successively working for 2 of Mr Kumar’s companies fell within the guidelines of the policy extract referred to above at para [8]. It also noted that, based on publicly available records, Taste of Creations’ registration with ASIC was cancelled on 26 November 2018. Ms Kaur indicated the business of taste of Creations had some financial issues which is why the Company was set up by Mr Kumar.

11. Asked about her current employment, Ms Kaur told the Tribunal that the Company closed down around 6 months ago.  The Tribunal confirmed its search of publicly available ASIC records indicate that the Company was deregistered by ASIC on 1 January 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Ms Kaur is the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Regulations.

    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.

15. 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.

16. The Company’s nomination application was refused by the Department and, subsequently, the (differently constituted) Tribunal made a decision that it did not have jurisdiction to review the Department’s decision to refuse that nomination. In the circumstances, as the nomination application made by the Company for the position of Café or Restaurant Manager to which Ms Kaur’s Subclass 186 visa application relates has not been approved, it follows that she 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.

17. Ms Kaur 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.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Katie Malyon

    
    Member

    ATTACHMENT – Extracts 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