Komite (Migration)

[2020] AATA 3061

Komite (Migration) [2020] AATA 3061 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Santosh Komite
Mrs SASYA GURALA

CASE NUMBER:  1731832

HOME AFFAIRS REFERENCE(S):          BCC2016/408754

MEMBER:Penelope Hunter

DATE:10 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 10 June 2020 at 9:07am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Systems Administrator – no approved nomination – business closed – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

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 Immigration and Border Protection on 27 November 2017 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 27 January 2016. 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 Systems Administrator for his employer Ahmer Arif Ismail. The second named applicant has applied for the visa on the basis of being a member of the family unit of the applicant.

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 relevant nomination application lodged by Amer Arif Ismail was refused by the Department on behalf of the Minister.

6. The Tribunal received an application for review of the delegate’s decision from the applicant on 15 December 2017.

7. On 29 April 2020, the Tribunal wrote to the applicants pursuant to the provisions of s.359A of the Act inviting the applicants to provide comment on information that it considered would be a reason or part of a reason for affirming the decision under review in writing. The information related to the Tribunal upon review affirming the decision of the Department to refuse the nomination application lodged by Ahmer Arif Ismail. The Tribunal explained that the relevance of the information and informed the applicants that if it relied on the information that it may find that the relevant nomination had not been approved and that the applicant may not be able to meet the requirements in cl. 186.223(2) of Schedule 2 to the Regulations.

8. On 12 May 2020, the Tribunal received a response from the applicant. He submitted that his employer had closed the business without informing him and was not responding to his requests to contact him. The applicant submitted copies of his Australian Taxation Office Notice of Assessment for the years ending 30 June 2014 to 30 June 2017. He claimed to have worked hard for his employer but had not been paid his entitlements such as superannuation. The applicant submitted evidence that he had lodged complaints with the Australian Taxation Office in December 2019 and had ongoing proceedings before the Industrial Magistrates Court of New South Wales.

9. On 3 June 2020, the applicants were invited  to appear before the Tribunal to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant only participated in the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the nomination associated with the visa application has been approved.

    Nomination of a position

12. 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.

13. 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.

14. The applicant had applied for the visa on the basis of a nomination in the position of Systems Administrator by Ahmer Arif Ismail. As set out in the decision of the delegate, submitted to the Tribunal by the applicant, this nomination was refused by the Department on behalf of the Minister on 24 October 2017.

15. The Tribunal had received an application to review the decision of the Department to refuse the nomination by Ahmer Arif Ismail. As set out in the s.359A letter to the applicants, on 13 March 2020, the decision to refuse the nomination was affirmed by the Tribunal.

16. At the hearing the applicant said that he had been treated very badly by Ahmer Arif Ismail, who the applicant claimed was supposed to support his nomination, but instead he just gave up. He repeated the information set out in his written submissions that his employer had closed the business without speaking to him and now no longer took his calls. The applicant said that he was a victim of his employer’s actions which had left him  very depressed and he was unsure of other visa options. The Tribunal enquired whether he had sought assistance with either problem and he responded not really.  The applicant had recently attended a hearing at the Industrial Magistrates Court of New South Wales in relation to his claim against Mr Ismail for his unpaid superannuation. This was awaiting a final hearing in July 2020 as Mr Ismail had not attended. The applicant told the Tribunal that he had come to Australia in 2008, he had spent time completing relevant qualification and had worked hard and paid taxes. He had a plan for the future for himself and his family and now he was a victim of the circumstances brought about by his employer’s decision to close the business.

17. The Tribunal accepts that the submission of the applicant that he had invested a lot of time and worked hard in an attempt to achieve a pathway to permanent residency. It accepts from the Notice of Assessments that he has provided that he has paid income tax in Australia. It also accepts his submission that the actions of his employer in withdrawing employment from the applicant and closing the business were activities outside his control and this has created fundamental difficulties for the applicant, his family and the visa application.

18. The approval of the nomination is an essential requirement for the grant of the visa under review. This is not a matter in which the Tribunal has any discretion. On the evidence before it, the Tribunal finds that the relevant nomination by Ahmer Arif Ismail, the subject of the declaration when the applicant’s visa application was made, has not been approved. It therefore follows that the applicant has not met cl.186.223(2) and cl.186.223 of Schedule 2 to the Regulations is not met as a whole.

19. 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.

20. The second named applicant have applied for the visa as a member of the family unit of the applicant. In the circumstances because the applicant does not meet the primary requirement for the visa and there is no evidence to suggest that the second and third named applicants meet the primary requirement for the visa, the Tribunal also affirms the decision in respect of the second and third named visa applicants. 

    DECISION

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

    Penelope Hunter
    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.