Momen (Migration)

[2019] AATA 3508

Momen (Migration) [2019] AATA 3508 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr S M Ashraful Momen
Mrs Mahmuda Rahman Runa

CASE NUMBER:  1732312

HOME AFFAIRS REFERENCE(S):           BCC2017/623473

MEMBER:R. Skaros

DATE:18 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2019 at 4:00pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination refused –  review application withdrawn – employment terminated – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223

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 30 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 15 February 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 (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 the Temporary Residence Transition stream, to work in the nominated position of Cook with Tasne Enterprise Pty Ltd.

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 nomination of the position lodged by Tasne Enterprise Pty Ltd in relation to the applicant was not approved.

6. The applicants’ representative wrote to the Tribunal on 21 November 2018 to inform it that they no longer act on behalf of the applicants and provided the applicant’s written consent. The applicant wrote to the Tribunal on 22 November 2018 confirming his contact details.

7. On 26 March 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on, or respond to information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of the application for review of the nomination refusal made by Tasne Enterprise Pty Ltd, which the Tribunal explained is relevant because one of the requirements for the grant of the visa is that the relevant nomination has been approved.

8. The applicant wrote to the Tribunal on 29 March 2019 indicating that he wished to attend a hearing for his case.

9. On the day of the hearing, the Tribunal received an email, which had been sent by the applicant on the evening of Friday 7 June 2019, from the applicant informing the Tribunal that his father had passed away and requesting a travel permit to travel to Bangladesh. The applicants nevertheless appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

10. The Tribunal asked the applicant if he would be travelling in the upcoming days and sought to clarify whether he was asking the Tribunal to delay the proceedings until after his return from Bangladesh. In response, the applicant stated that due to the long weekend, he was unable to arrange a travel permit from the Department and he was worried that if he departed without a visa that he would not be able to return to Australia. He stated that as required by custom, his father’s funeral and burial had to occur straight away and he could not arrange travel for the funeral. He stated that he had no plans to travel to Bangladesh any time soon, though he may go in 40 days. The applicants did not indicate that they wanted to delay the proceedings.

11. At the hearing, the Tribunal discussed with the applicant the requirement in cl.186.223 and the information that is the subject of the s.359A letter.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the associated nomination has been approved.

    Nomination of a position

14. 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. In addition, this criterion also requires that the nomination has been approved.

15. The applicant applied for the visa on the basis of a nomination of a position made by Tasne Enterprise Pty Ltd, which the applicant identified in the visa application form as having transaction reference number EGODOBCBG3 (the associated nomination). Departmental records indicate that on 24 October 2017 the associated nomination was refused by the Department.

16. On 24 October 2017, the Department sent the applicant a natural justice letter inviting the applicant to comment on the refusal of the associated nomination within 28 days. The applicant did not respond and consequently the delegate made a decision to refuse to grant the visas.

17. The applicants applied for review of the decision in relation to the refusal of the visas. The nominator also lodged a review of the decision not to approve the associated nomination, however, that review application has since been withdrawn. In response to the Tribunal’s invitation to comment on the information relating with the withdrawal of the review of the nomination refusal, the applicant indicated that he wished to attend a hearing for his case.

18. At the hearing, the Tribunal explained to the applicant the requirements in cl.186.223 and discussed with the applicant the evidence before it which indicates that the applicant does not meet that requirement. In response, the applicant stated that he had worked hard for the employer and believed that there were no issues with the application. The applicant stated that he had been deceived by his employer, who had often not paid him on time. He stated that he had no idea that the business would close down, though the business appears to still be operating. He stated that his employment was terminated without reason.

19. The Tribunal explained to the applicant that there is no provision in the legislation to take into account the nominator’s conduct as that the issue in the review relates only to whether the associated nomination has been approved. The applicant stated that he and his spouse have been trying to build a life in Australia. He stated that they have done all that was required to qualify for the visa. They have spent a large sum of money on the visa application and related fees. He stated that he has not been paid superannuation and was constantly threatened by the employer. The applicant stated that the employer has to be investigated. The Tribunal informed the applicant that it had no power to conduct investigations in relation to employment related breaches and that he could seek advice from the Fair Work Ombudsman about his entitlements and make a complaint with the Department.

20. Mrs Runa expressed her disappointment and stated that she and the applicant have waited five years to get their permanent residence. She stated that they have been cheated and their life has been wasted through no fault of theirs.

21. The Tribunal has considered the applicant’s evidence and acknowledges the difficulties in which they find themselves. As explained to the applicant, there is no provision in the legislation to take into account any extenuating circumstances and the Tribunal must make its decision in accordance with the applicable legislative provision. The issue in this review relates to whether the associated nomination has been approved. In this case, the nomination has been refused by the Department and review of the nomination refusal has now been withdrawn, meaning the applicant has no prospect of meeting the requirements in cl.186.223.

22. As the relevant nomination has not been approved, it follows that the applicant does not meet the requirements of cl.186.223(2). Therefore, cl.186.223 has not been met as a whole.

23. 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.

24. The secondary applicant applied for the visa on the basis of being a member of the first named applicant’s family unit. The first named applicant does not meet the primary requirements for the visa and there is no evidence before the Tribunal to suggest that the secondary applicant meets the primary requirements for the visa. In the circumstances, the Tribunal must also affirm the decision in respect of the secondary applicant.

    DECISION

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

    R. Skaros
    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.