KHAN (Migration)

[2019] AATA 1949

KHAN (Migration) [2019] AATA 1949 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UMAIR KHAN

CASE NUMBER:  1804512

HOME AFFAIRS REFERENCE(S):           BCC2016/2894525

MEMBER:Alan McMurran

DATE:20 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 20 February 2019 at 4:20pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent)(Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – nomination application withdrawn – request postponement – shop closed – not aware application had been withdrawn – applicant not the subject of a nomination application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 187.233, rr 1.13A, 1.13B

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 August 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of pastry cook.

5. Background

6. The applicant is a 30-year-old citizen of Pakistan. The applicant has never married and was residing in Queensland at the time of application where he was working as a pastry cook. The applicant first came to Australia in 2009 as a student and obtained qualifications in the period from February 2009 to April 2012 in hospitality and retail baking.

7. The applicant moved from Melbourne to Queensland where he obtained work in several Cheesecake shops at Casula, Casuarina and Coorparoo as an assistant pastry cook between 2012 and 2017. The applicant obtained a 457 visa in 2013, which was due to expire in or about May 2017, for the sponsored position of pastry cook. In or about 2016, the applicant was introduced to the sponsor who said he might be interested in sponsoring the applicant in the RSMS visa program to work as a pastry cook.

8. The applicant left his employee with the Cheesecake Shop in Rockhampton and started work with another employer, Mughal Brothers Pty Ltd (Mughal) in about August 2017. It was the intention that Mughal would become his employer and sponsor. Mughal operated a shop at Bundaberg, where the applicant was asked to work.

9. The applicant remained at Bundaberg until about April 2017, when he moved to Melbourne to find other work. The applicant was told by his employer that the Bundaberg shop was to be sold and there was no other shop where the applicant could continue to work.

10. The applicant’s 187 visa application was lodged on 31 August 2016, to accompany an application for a nomination lodged by Mughal on 31 August 2016. The nomination application was not completed and was withdrawn at the request of the nominator on 14 December 2017. The applicant was not told the nomination had been withdrawn by Mughal, and his visa application continued and was processed by the Department.

11. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the application for the nomination had not been approved by the Minister and had been withdrawn.

12. The applicant appeared before the Tribunal by telephone on 20 February 2019 to give evidence and present arguments. The applicant had originally requested a postponement of the hearing date by email received by the Tribunal on 20 February 2019 at 12:06 AM. The applicant email stated:

    “I have AAT hearing on 20/02/19. As I plan to drive from Melbourne to Sydney this afternoon. Because of stress and anxiety I suffered from diarrhoea.

    I request Tribunal please reschedule my hearing date if possible. I tried to calm but my medical condition forced me to apply for new hearing date.”

13. The request was accompanied by a medical certificate dated 19 February 2019 from a doctor Fady Abdou, from the Coburg Family Medical Centre. The medical certificate certified that the applicant was “suffering from a medical condition and for the period from 19 February 2019 to Wednesday, 20 February 2019 inclusive he is unable to attend his court hearing”.

14. The Tribunal considered the request which it then declined on the basis the medical certificate was inadequate to demonstrate why the applicant was unable to attend. The Tribunal telephoned the applicant on 20 February 2019 at 8:14 AM accordingly, and invited him to appear instead by telephone. The Tribunal also contacted the applicant’s representative, who did not answer.

15. The applicant’s hearing was part of a multi-application hearing list, and the Tribunal telephoned the applicant at approximately 9:50 AM on 20 February 2019, once the hearing had commenced and the applicant indicated he was willing and able to continue with the hearing by telephone. The applicant made no objection to that course and the matter then proceeded.

16. The applicant’s representative had not responded to the Tribunal’s telephone message on the morning of the hearing, and the applicant was not represented in relation to the review by his registered migration agent. The applicant accepted however that the matter should proceed on the basis that he was attending alone by telephone.

17. The Tribunal explained to the applicant the purpose of the review and the issue to determine whether the applicant was the subject of a current valid nomination. The applicant said he understood and the Tribunal continued with the hearing. The Tribunal informed the applicant it had available the Department’s file, the Tribunal’s file and the information discussed at the hearing which would then be part of the consideration for the Tribunal’s decision. The applicant indicated he understood that would be the process and said he wanted to give an explanation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant is the subject of a nomination approved by the Minister.

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·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.

22. At the hearing, the Tribunal asked the applicant whether he was aware of the reasons why the nomination application did not proceed. The applicant said that he was being sponsored initially for the position of pastry cook and that he had been in Australia since 2009. He said that he had arrived as a student and obtained his 457 visa in 2013 in the stated occupation. He said that one of the managers who supervised him as a pastry cook in the cheesecake shop introduced him to another potential employer who might be willing to sponsor him for a 187 visa under the regional migration program. The applicant said he was introduced to a person from the sponsor who apparently informed him he would be required to work in Bundaberg. The applicant said that he commenced work in a shop at Bundaberg for the sponsor after the nomination application had been lodged.

23. The Tribunal notes that the Department’s records indicate the nomination application was withdrawn on 14 December 2017. The applicant said that he was not told about the withdrawal and that the employer had not consulted him. He said that from about August 2017 until he left in April 2018 when the Bundaberg shop closed, that he thought the nomination was still proceeding. The Tribunal asked why he thought he had not been consulted and was not aware the application had been withdrawn.

24. The applicant said that in about September 2016, he had been asked by a director of the sponsor to pay him $20,000 for the nomination to proceed. He said that the director also said to him several times he was concerned that if the applicant were successfully nominated, once he had his visa, he would leave the shop and go elsewhere for employment. The applicant said he refused to pay the $20,000 to the director and assured him he would not be leaving the position. He said he had nowhere else to go and wanted the nomination to be successful.

25. It appeared to the Tribunal from the applicant’s explanation, that he was aware the company was having some problems, but did not discuss any details with the applicant about his nomination application. He said that he had continued to work for the sponsor between September 2016 and April 2017, just prior to the expiry of his 457 visa. He said that in about April 2017, he had a conversation with his employer who told him that he intended to sell the Bundaberg shop and the applicant could “go if you want”. The applicant said the employer told him his nomination application “will still proceed” and that he would be employed at another shop in due course. However he did not have another shop at that time where the applicant could work, so indicated to the applicant he was free to go and find work elsewhere. The applicant said he went to Melbourne where he has remained and where he discovered the nomination application had been withdrawn.

26. The Tribunal asked the applicant if he had another nomination or employer who could sponsor him. The applicant said “no, but if I tried I will get it”. The Tribunal put to the applicant that the fact he did not have a nomination, would be the reason or a part of the reason for affirming the decision under review, and invited the applicant to comment. The applicant did not wish to make any reply and made no comment. The applicant then asked the Tribunal if he were to obtain an offer letter in the future whether or not he would be able to reapply. The tribunal informed him that a visa refusal did not prevent him from making any further visa application.

    Findings

27. The tribunal is satisfied on the information available to it that the application by the sponsor, Mughal, was withdrawn on 14 December 2017. The applicant accepts the evidence of the applicant as true and correct and notes that the withdrawal of the application was made without any discussion or consultation with the applicant.

28. Whatever the reason for the withdrawal however, and in respect of which there is no probative information before the Tribunal, the Tribunal finds it is satisfied the applicant is not the subject of a nomination application which has been approved by the Minister.

29. The Tribunal is also satisfied that the nomination lodged by the sponsor on 31 August 2016 was withdrawn, and processed by the Department on 14 December 2017, and as a result of which the Tribunal finds the applicant is the subject of a nomination which has now been withdrawn by the sponsor.

30. Given these findings, and the fact the Tribunal has no discretion to set aside or overlook the mandatory requirements of the Regulations, the only course open to the Tribunal is to affirm the decision.

31. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made no more than 6 months after the Minister approved the nomination.