Nasri (Migration)

[2018] AATA 3755

Nasri (Migration) [2018] AATA 3755 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jamal Nasri
Mrs Cristina Codazzi
Miss Emily Jasmine Nasri
Miss Nadine Nasri
Mr Andrea Nasri

CASE NUMBER:  1610097

DIBP REFERENCE(S):  BCC2015/2911913

MEMBER:Denise Connolly

DATE:3 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2018 at 1:18pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Motor Mechanic (General) – Nomination application withdrawn – Decision under review affirmed 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, 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 16 June 2016 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 6 October 2015. 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 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 Motor Mechanic (General). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nominator, Londy Ptd Ltd withdrew the related nomination application.

6. The applicants appeared before the Tribunal on 29 June 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

9. 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.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nomination application, made by Londy Pty Ltd (trading as Purely Commercials), referred to in cl.186.223 was withdrawn on 19 April 2016. Accordingly the delegate refused to grant the visas on the basis that the applicant did not meet cl.186.223.

11. Prior to the hearing the applicant provided to the Tribunal information regarding his employment with Purely Commercials which commenced in August 2013. He indicated that the employer would not give him a copy of the employment contract but he believes he was not paid in accordance with that contract. He suffered a work related injury in September 2015 and returned to work before he had recovered because the employer wanted him to. The insurance company accepted liability for the injury. The employer still agreed to sponsor him for his permanent visa and the applications were lodged. However his injury did not improve and he required surgery. On returning to work the empoyer asked that he give back the workshop keys. He asked for annual leave and questioned the entitlement calculated by the employer. He requested further details regarding his entitlement and leave taken. He was then told that there was not enough work for him and that they had decided to terminate his employment. The employer said they would give him a good reference if he resigned. However they continued to employ a working holiday visa holder. The employer still refuses to give the applicant a copy of the employment contract. He has sought legal advice and made a claim for unpaid leave/public holidays. He was then informed that the employer had withdrawn the nomination application. He has since found another sponsor, Ciliberti Motors and has been employed with them since February 2017. His family has settled in Perth and wish to remain here.

12. The applicant provided copies of correspondence between his representative and his former employer, Purely Commercials, and a copy of an email sent by the former employer to the Department regarding the business’ need to employ him.

13. At the hearing the Tribunal discussed with the applicant the requirements of cl.186.223. It explained that, because the nominator has withdrawn the nomination application, the requirement in cl.186.223, that the nomination has been approved, is not met.

14. The applicant said that his former employer did not tell him that they had withdrawn the nomination application, or that the delegate had written to him giving him an opportunity to comment on the withdrawal by the employer. The circumstances of the withdrawal of the nomination application were outside his control. The Tribunal explained that it still needed to consider whether the applicant was the subject of a nomination application which has been approved. It explained that it appeared the applicant cannot meet this requirement.

15. The applicant is pursuing a claim with the Fair Work Ombudsman. He and the other review applicants have been granted Subclass 457 visas so they will be able to continue to reside in Australia.

16. On the basis of the information in the delegate’s decision the Tribunal finds that the application made by Londy Pty Ltd for approval of a nominated position under r.5.19(3) has been withdrawn. Accordingly the nomination has not been approved and the applicant does not meet cl.186.223(2).

17. Therefore, cl.186.223 is not met.

18. 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

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

    Denise Connolly
    Member