Kumar (Migration)

[2021] AATA 2258

Kumar (Migration) [2021] AATA 2258 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amit Kumar
Mrs Renu Madaan

CASE NUMBER:  1822713

HOME AFFAIRS REFERENCE(S):          BCC2017/2319778

MEMBER:Karen McNamara

DATE:15 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2021 at 10:53am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – sponsor ceased operations – applicant left Australia – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; 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 Home Affairs on 25 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 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 (Cth) (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 Mr Amit Kumar (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO – 351411).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required Mr Amit Kumar to be the subject of an approved nomination. The delegate found that the nomination lodged by KS Khabra Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 26 June 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mrs Renu Madaan could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 6 August 2018 for review of the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal.

9. The applicants were represented in relation to the review by their registered migration agent.

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 applicant meets the requirements of cl.186.223 of Schedule 2 to the Regulations.

    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 reg 1.13A and reg 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. On 11 May 2021, the review applicants were invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 16 June 2021 at 11:15 am (WA time) 1:15pm (NSW time).

15. On 13 May 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

16. The information related to information before the Tribunal that shows on 8 February 2021, the Tribunal found it had no jurisdiction to review the application made by KS Khabra Pty Ltd  and for this reason the original decision made by the delegate from the Department of Home Affairs is unchanged.

17. The Tribunal explained in its letter of 13 May 2021, that this information is relevant because under cl.186.223(2) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

18. The Tribunal’s letter of 13 May 2021 additionally stated the following;

    ‘ The nomination relied on to satisfy cl.186.223 must be the one that was made at the

    time of the visa application – it is not possible to rely on another nomination.

    If the Tribunal relies on this information, it may find that the nomination in relation to
    you has not been approved and consequently the decision under review would be
    affirmed. You must have a related nomination to be able to be granted the visa.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 27 May 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 27 May 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 27 May 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 11 May 2021.
    Please note, however, that if you do not respond to this letter within the date
    specified or within any extended timeframe, you will lose your right to attend the
    scheduled hearing and it will be cancelled. The Tribunal will proceed to make a
    decision on the review without taking any further action to obtain your views on
    the information.’

19. The invitation was sent to the last address provided in connection with the review and advised as stated above, if the comments or response were not provided in writing by          27 May 2021, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act.

20. On 27 May 2021, the applicants provided to the Tribunal a submission dated 17 May 2021 stating as follows;

    ‘ Dear Sir/Madam,

    I, Amit Kumar, am commenting or responding to the information required by the Administrative Appeals Tribunal.

    Application Background

    The application for Employer Nomination (class EN) Employer Nomination (subclass 186) was lodged on 26 June 2018. The application was refused as the applicant did not satisfy cl.186.223 of the Migration Regulations 1994.

    Relevant Law

    The cl.186.223 of the Migration Regulations 1994 states that:

    186.223

    (1) The position to which the application relates is the position:

    a) nominated in an application for approval that:

    (i) identifies the applicant in relation to the position; and

    (ii) is made in relation to a visa in a Temporary Residence Transition stream; 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.

    Applicant’s Circumstances

    I faced exceptional circumstances when I lodged Employer Nomination for a Permanent Appointment (subclass 186) visa. The application was made by KS Khabra Pty Ltd. for me. During the time of application, I had all the relevant documents to provide to the Tribunal. The documents included the super statements, tax statements, pay slips and reference letter but no evidence of the registration of the restaurant was provided because the employer was unwilling to provide those documents.

    I believe that I have been victimized because I submitted all the documents, but my employer did not submit the registration documents of the restaurant. I was hired to work as a cook at KS Khabra Pty Ltd. and he was paid the wages. The super and tax statements were also submitted on time, but the registration documents were unavailable because in February 2019, the restaurant was closed. The closure of the restaurant caused the cancellation of the ABN in December 2020 due to which the restaurant got deregistered and was not considered as a legal entity while my case at the Administrative Appeals Tribunal was in process. I did my part of submitting the relevant documents which I could, but the employer is at fault. The employer was being dodgy and two-faced as he was being sweet on my face and agreeing to support me but behind my back, he was unwilling to support me and sponsor me. Due to this reason, the evidence of the registration of the restaurant was not provided. I would like to bring to your notice that the employer who sponsored me had given me an employment contract and the same has been provided to the Department of Immigration during my visa processing but the employer has closed his business and for which I am made a scapegoat and my future is in dilemma. Honorable Member consider whose mistake is costing my life? How can the employer who sponsored me can deregister his business as per his whims and fancies? Doesn’t he need to penalize for breaching what he promised to do in writing to an employee?

    I believe that in this situation I was not at fault but still I have been facing so many issues. The employer was liable for ruining my life by hiring me at first, agreeing to sponsor me, closing the restaurant, and leaving me without providing any documents. I had to request to get my documents from the employer. Therefore, it is a request to consider this case exceptionally and set a precedent for people to be more accountable of what he promised to the employees and the authorities.

    Currently, I will not be able to provide any documents because I am in stress and I have been staying away from my wife in a different country, Canada. I travelled to Canada with an intention to travel back to Australia but because of the closure of the Australian Borders, I was stuck in Canada and I could not come back. Due to Covid-19 restrictions, I have been staying alone and away from my family in Canada whereas my case is ongoing in Australia. I am skilled professional, and my skills will be of immense help to the Australian Business in my field and given a chance I will utilize it to the best of my abilities and therefore I am requesting to remit my case and provide me an opportunity to work in this beautiful country.

    Request to the Tribunal

    Therefore, I would request the respected Tribunal Member to consider the exceptional circumstances and this case under humanitarian view. Furthermore, I would request the respected Tribunal Member to remit the application to the Department of Home Affairs for the assessment of the remaining criteria.

    Thanking you.

    Sincerely,

    Amit Kumar and Renu Madaan’[1]

    [1]  Transcribed as prepared and submitted by the applicant

21. On the 10 June 2021, the Tribunal received from the authorised representative (via email) a request stating ‘ Further to our telephonic conversation, I have contacted my client Mr Amit Kumar who is currently in Canada.

    We have been instructed by our client to request the Honourable member for a decision based on the submission provided.’

22. In accordance with the representative’s request, the Tribunal has resolved this matter on the papers.

23. The Tribunal acknowledges the applicants’ submission and has empathy for Mr Kumar’s circumstances however, the Tribunal must apply the legislation as it stands.

24. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

25. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

26. There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.

27. In relation to the second named applicant Mrs Renu Madaan, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicant Mrs Renu Madaan as a member of Mr Amit Kumar’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311 of Schedule 2 to the Regulations.

28. 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.

    DECISION

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

    Karen McNamara
    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.