Mand (Migration)

[2019] AATA 3986

Mand (Migration) [2019] AATA 3986 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kultar Singh Mand

CASE NUMBER:  1816319

DIBP REFERENCE(S):  BCC2017/1604333

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 August 2019 at 12:33 pm (QLD time)

DATE OF WRITTEN RECORD:                16 August 2019

PLACE OF DECISION:  Brisbane

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

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cafe or Restaurant Manager – the nomination of the applicant was refused– not the subject of an approved nomination – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 May 2018 to refuse to grant the applicant a  Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (‘the Act’).

2. At the hearing on 6 August 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 4 May 2017. At the time of application, Class RN contained one Subclass: Subclass 187 (Regional Sponsored Migration Scheme).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (otherwise known as ‘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.

5. Applicants seeking to satisfy the primary criteria must meet the ‘common criteria’, as well as the criteria for one of two alternate visa streams: either the Temporary Resident Transition stream or the Direct Entry stream. 

6. In the present case, the applicant is seeking a visa in the Direct Entry stream to work in the nominated position of Cafe or Restaurant Manager.

7. The delegate refused to grant the visa on 16 May 2018 because, in their view, the applicant did not meet clause 187.233(3) of Schedule 2 to the Regulations as the associated nomination application lodged by The Trustee for Wellngood Trust was refused on 5 April 2018 by the Department.

8. The applicant appeared before the Tribunal on 6 August in 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of clause 187.223(3).

   Nomination of a position

10. Clause 187.223, as is applicable in this case, essentially requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, which is located in regional Australia. The position must be the one that was the subject of the declaration made as part of the visa application.

11. In addition, this criterion also requires in part, that the person who will employ the applicant is the person who made the nomination, and the nomination has been approved and has not subsequently been withdrawn, and the position is still available to the applicant, amongst other requirements.

12. As reflected in the delegate’s visa refusal decision, a copy of which was submitted by the applicant to the Tribunal, the application for nomination pertaining to the applicant was refused by the Department on 5 April 2018.

13. During the review hearing, the applicant was invited to provide evidence in support of his application for review.  His evidence may be summarised as follows. 

14. According to the applicant, he retained a migration consultant and provided documentation to that consultant in connection with his employer’s application for nomination. The consultant apparently told the applicant that he was suitable for the position.

15. Prior to that, the applicant was in Perth studying a Certificate IV and a Diploma in Commercial Cookery. On 2 March in 2017, he applied for a job using the SEEK website. He came to Queensland and visited the nominator in Warwick in regional Queensland, where the restaurant was located, and he had three day’s training in the restaurant.

16. The applicant informed the Tribunal that the employer, Mr Peter Cook, was happy with him and offered him the position of Restaurant Manager after the three days of training. The applicant also told the Tribunal that the job was offered on the condition that the position would commence when the existing manager, who had already been there some time, had departed.

17. The applicant told the Tribunal he had a Student visa at that time and he then moved to Brisbane where he studied for a Diploma in Hospitality, which was the next level of study for him.

18. The applicant advised that his employer also gave documents to the applicant’s migration consultant for the visa and nomination applications and they were lodged with the Department.  After several months the applicant tried to contact the employer, Mr Cook, but he was away in the United States and he could not contact him for some months. In due course, following the employer’s return to Australia, the applicant was in contact with him and was advised that as soon as the existing manager leaves the applicant can take over the position.

19. In due course, the application for nomination lodged by The Trustee for the Wellngood Trust, that is the business owned and operated by Mr Peter Cook, was refused by the Department along with the applicant’s visa application.

20. The applicant informed the Tribunal that he was under the impression that Mr Cook would lodge an application for review in the Tribunal for the nomination refusal decision, however he went on to say that Mr Cook did not reply to his emails and calls despite his extensive efforts to get in touch with him.

21. The applicant advised the Tribunal that he paid his migration consultant several thousand dollars in connection with the visa and nomination applications. When he could not get in contact with Mr Cook, he attempted to get in contact with the consultant who then advised after some time that she would no longer represent him. The applicant advised the Tribunal that he attended the hearing today by himself and is self-represented because he cannot afford another consultant.

22. The applicant outlined that he completed his studies and he had also worked as a manager at Domino’s and in his view he had the skills and experience for the position. The applicant also advised the Tribunal that he had checked on the Internet with regard to the Australian Business Number for the nominator, that is The Trustee for Wellngood Trust, and found that the Australian Business Number (otherwise known as an ‘ABN’) is no longer active.

23. In summary, the applicant informed the Tribunal that he cannot get in touch with Mr Cook on behalf of the nominator and his previous migration consultant will not respond to his requests for information. The applicant said that he has suffered some depression and stress as a result of these matters.

24. The applicant is on a Bridging Visa and he advised the Tribunal that he cannot obtain other sponsorships or nominations because no employer is interested in him, having applied for the position with Mr Cook.

25. The Tribunal raised with the applicant that the delegate’s visa refusal decision indicates that the nomination was refused and also that there is no persuasive evidence before the Tribunal that the nominator appealed that decision for merits review in the Tribunal. These matters tend to suggest there is no nomination and the applicant does not meet the visa requirements. The applicant was invited to comment and he declined to do so.

26. The Tribunal also raised with the applicant that on his own evidence the ABN for the nominator, that is The Trustee for the Wellngood Trust, appeared to be inactive and this further suggests that there is no active nomination for him. The applicant was invited to comment and he declined to do so.

27. The Tribunal invited the applicant to provide further evidence about the decision to refuse to grant him the Subclass 187 visa. In essence, the applicant advised that he had done all the right things, he had completed his studies, he had work experience, and he applied for the position with The Trustee for the Wellngood Trust in good faith. He advised that his situation is not of his own making, rather it is the fault of Mr Cook who has not for whatever reason submitted the correct material for the nomination application to be approved. 

28. The applicant stated that he does not want to return to his home country of India to see his parents under the present circumstances. He also outlined that he would like to do further studies in Australia and seek another opportunity for employment.

29. The applicant confirmed to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing.

30. The Tribunal has very carefully considered all of the evidence in this case and the Tribunal notes for the sake of completeness that it accepts that the applicant gave truthful evidence during the review process.

31. Following careful consideration, the Tribunal finds that at the time of its decision, there is no evidence of an approved nomination relating to the applicant, nor is there any persuasive evidence that the nomination refusal decision was appealed in the Tribunal.

32. Accordingly, the requirements of clause 187.233(3) are not satisfied by the applicant. It follows that clause 187.233 in its entirety is not satisfied by the applicant. 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 the person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

33. The Tribunal, constituted by Member Chapman, affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    K. Chapman
    Member