Lakhani (Migration)

[2019] AATA 4161

Lakhani (Migration) [2019] AATA 4161 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Lakhani

CASE NUMBER:  1811742

HOME AFFAIRS REFERENCE(S):           BCC2015/1671672

MEMBER:R. Skaros

DATE:11 September 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 11 September 2019 at 11:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – nominator deregistered – position no longer available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 11 June 2015. 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 Retail Manager with Tandon Enterprises Pty Ltd at Glen Innes NSW.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233(5) of Schedule 2 to the Regulations because the delegate was not satisfied that the nominated position is still available to the applicant.

6. The applicant provided a copy of the delegate’s decision record with the application for review. The decision record indicates that the Department received information that the nominator, Tandon Enterprises Pty Ltd, is no longer operating the service station at Glen Innes and that the applicant is no longer employed by the nominator.

7. On review, the Tribunal conducted its own searches of publicly available sources regarding the status of the nominator. Information obtained from the ASIC Register indicated that there is a strike off action in progress in respect of the nominator. This information was put to the applicant pursuant to s.359A. In the s.359A letter, which was sent on 6 June 2019, the Tribunal explained to the applicant that the information is relevant to the requirement in cl.187.233(5) and that if the Tribunal relied on that information it may not be satisfied that the nominated position is still available to him.

8. On 20 June 2019 the Tribunal received a written response from the applicant, details of which are discussed further below.

9. The applicant appeared before the Tribunal by telephone on 26 August 2019 to give evidence and present arguments.  

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 nominated position is available to the applicant

    Nomination of a position

12. 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. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position. This criterion also requires that the nomination has been approved and not subsequently withdrawn. In addition, the position must still be available to the applicant.

13. The applicant applied for the visa on the basis of a nomination of a position made by Tandon Enterprises Pty Ltd. That nomination was approved on 3 June 2015.

14. During the processing of the applicant’s visa application, the Department received information indicating that the applicant was no longer employed by Tandon Enterprises Pty Ltd. in his response to the Department regarding this information, the applicant stated that he had been working with the nominator as a Store Manager for several years at the service station in Glen Innes, that he did not expect his visa application would take such a long time to process and that the service station was handed back to the Caltex (Calstores) in late 2017. The applicant indicated that the circumstances were beyond his control. The applicant stated that the employer was seeking to find another service station in which they would offer him employment. After some time, the Department proceeded to refuse the visa application.

15. On review, information before the Tribunal indicated that strike-off action was in progress in relation to the nominator. This suggested that Tandon Enterprises Pty Ltd is in the process of being deregistered by ASIC. In his written response, the applicant provided a history of his employment with the nominator, which was consistent with the information provided to the Department, as set out above. In addition, the applicant stated that in May 2017 his employer informed him that they would establish another business in a regional area and would let him know. The applicant stated that he moved to Sydney for a short period of time after which he was contacted by the employer who advised him that they had established another business in Tamworth. The applicant stated that he commenced working for the employer in Tamworth, but later found out that the business was being operated by a different legal entity. He stated that the Department had informed him that he could not rely on that employment to meet the requirements for the visa and that a new sponsorship application has to be made by the new entity if they wish to sponsor him. The applicant stated that the Department had misunderstood the requirements relating to his qualification and that due to this misunderstanding his application for the visa was significantly delayed and had resulted in his visa application being refused.

16. At the hearing, the Tribunal discussed with the applicant the requirement in cl.187.233 and the evidence before it which indicates that the position in which he has been nominated is no longer available to him. In response, the applicant stated that he understands the regulations and understands that the position is no longer available. The applicant relayed the history of his arrival and study in Australia, as well as the history of his employment with the nominator. The applicant was aggrieved about the length of time the Department took to assess his application for the visa and stated that he had originally intended to renew his student visa but was advised by the agent that there would be no issues with his employer nomination visa. The applicant stated that the Department refused his visa application after three years and did not accept his employment in Tamworth because it was with a different company. The applicant stated that he is now married to an Australian and that his spouse is due to have their first child in a few months.

17. The applicant requested the Tribunal to delay making its decision for a few weeks so that he can seek further advice about his options based given his current personal circumstances. The Tribunal agreed to delay the making of its decision until after 9 September 2019. As this date has now passed, the Tribunal has decided to proceed to a decision on the information before it.

18. The Tribunal acknowledges that the applicant is aggrieved by the length of time the Department taken to process his visa application. The Tribunal also accepts that the applicant had worked with the nominator as a Store Manager at Glen Innes up until May 2017 when the service station was returned to the franchisor, Caltex. The Tribunal also accepts that the applicant is no longer employed by the nominator due to circumstances that were outside of his control. However, as explained to the applicant at the hearing, there is no provision in the legislation to take into account the circumstances for why the nominated position is no longer available to the applicant.

19. The issue before the Tribunal at the time of this decision relates to whether the position in which the applicant was nominated at the time of the visa application is still available to him. The evidence before the Tribunal indicates that the nominator is in the process of being deregistered and no longer operates a business. In the circumstances, the Tribunal is not satisfied that the nominated position is available to the applicant. Therefore, the applicant does not meet the requirements in cl.187.233(5). Therefore, cl.187.233 is not met.

20. 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

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

    R. Skaros
    Senior 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.