Kaur (Migration)

[2019] AATA 1143

Kaur (Migration) [2019] AATA 1143 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manpreet Kaur
Mr Ethan Ekam Raju
Ms Parineeti Chahat Raju
Mr Sanjeev Raju

CASE NUMBER:  1815071

HOME AFFAIRS REFERENCE(S):           BCC2017/1488865

MEMBER:R. Skaros

DATE:2 April 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 02 April 2019 at 11:40am

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 – 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 9 May 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 24 April 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 Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager for Spice of Life Authentic Indian Cuisine 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 was not approved.

6. The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 28 March 2018.

7. On 6 December 2018, the Tribunal wrote to the applicants noting that the nomination for the position had not been approved and requesting the applicant to provide information as to whether the relevant nomination has been approved or whether there is a pending application for review of the decision not to approve the nomination.

8. On 1 February 2019, the Tribunal received correspondence from the applicant’s representative, Salvos Legal, informing the Tribunal that the visa application for review is not linked to an approved nomination or a pending review of the nomination refusal. It was noted that the applicant was obtaining legal advice regarding her employment entitlements and that she would be requesting the Tribunal to consider referring the matter to the Minister.  The Tribunal also received a copy of a letter from Legal Aid stating that they were assisting the applicant with an underpayment of wages and entitlements claim against Spice of Life Authentic Indian Cuisine Pty Ltd.

9. Prior to the hearing the Tribunal received detailed statement from the applicant regarding her travel and stay in Australia, her employment history, poor treatment and underpayment  by her former employer and her personal circumstances, including the birth of her children, one of who has learning difficulties. The applicant provided copies of her qualifications and English language skills, birth certificates for her children and various letters. The applicant requested for the Tribunal to refer the matter to the Minister.

10. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination has been approved.

    Nomination of a position

13. 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.

14. The applicant applied for the visa on the basis of an employer nomination made by Spice of Life Authentic Indian Cuisine Pty Ltd in which she was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the Department refused to approve the associated nomination on 28 March 2018.

15. At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the information before it which suggests she does not meet that requirement. In response, the applicant provided details of her employment with the nominator and stated that she had been exploited by her employer and treated very poorly. The applicant understood that the Tribunal had no discretion in her case and that without a nomination she would not be able to meet the requirement for the visa.

16. The Tribunal discussed with the request to refer the matter to the Minister and informed the applicant that while it would consider the request, even if the Tribunal does not refer the matter, it was open for the applicants to make a request directly to the Minister under s.351. The Tribunal further noted that the applicant may also wish to seek advice about any other options she may have before deciding whether to make a request to the Minister.

17. It is not in dispute that the relevant nomination lodged by Spice of Life Authentic Indian Cuisine Pty Ltd, in relation to which the applicant made the required declaration in the visa application, was refused. In the circumstances, the applicant does not meet the requirements in cl.186.223(2). Therefore, cl.186.223 is not met.

18. 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.

19. The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

20. The Tribunal has considered the applicant’s request to refer the matter to the Minister, but has decided not to refer the matter. The Tribunal notes however that following this decision, the applicants would be able make a request directly to the Minister. 

    DECISION

21. 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.