Rahaman (Migration)

[2019] AATA 4272

Rahaman (Migration) [2019] AATA 4272 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Hasib Bin Rahaman
Mrs Konar Paramita Syed
Ms Sneha Syed

CASE NUMBER:  1818620

DIBP REFERENCE(S):  BCC2017/2313857

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 August 2019 at 11:05 am (QLD time)

DATE OF WRITTEN RECORD:                26 August 2019

PLACE OF DECISION:  Brisbane

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

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination refused– nominator had withdrawn their appeal to tribunal –not the subject of an approved nomination –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 June 2018 to refuse to grant the applicants  Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (‘the Act’).

2. At the hearing on 8 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 Tribunal reference is 1818620. The first named applicant is Mr Syed Hasib Bin Rahaman (‘the applicant’). The second and third named applicants are the wife and child of the applicant.  All of the applicants are nationals of India. The applicant is presently located in Australia and the other applicants are presently located in India.

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 June 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas under s.65 of the Migration Act 1958 (‘the Act’).

5. The applicants applied for the visas on 29 June in 2017. The first named applicant included his wife and child in the visa application. At the time of the application Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 

6. The criteria for the grant of 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 the three alternative visa streams, the Temporary Residence Transition stream, the Direct Entry stream or the Labour Agreement stream.

7. In the present case the first named applicant (hereafter ‘the applicant’) is seeking a visa in the Temporary Residence Transition stream to work in the nominated position of cook. The Departmental delegate refused to grant the visas because, in their view, the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, as the associated nomination application lodged by Paradise Collections Pty Ltd was refused by the Department on 23 May 2018.

8. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi language, although the applicant provided the bulk of his evidence in the English language.

9. The applicant submitted documents at the hearing, including his Australian Taxation Office Notices of Assessment, other correspondence from the Australian Taxation Office, correspondence from the Fair Work Ombudsman, a letter of engagement, and medical records.  All submitted material has been duly considered by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a Position

11. Clause 186.223, as is applicable in this case, essentially 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 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. There are also additional criteria for the visa, including that the nomination has been approved and has not been subsequently withdrawn and the position is still available to the applicant.

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 23 May 2018. 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. He had worked for Paradise Collections Pty Ltd from 1 June 2015 and had his last day of physical work there on 13 June in 2018. He was the head cook at the Delights of Paradise restaurant.

13. Following the applicant’s last day of physical work on 13 June 2018, he received paid leave between June and September of 2018. The applicant fell into dispute with his employer, Paradise Collections Pty Ltd, with regard to matters concerning superannuation and leave entitlements. He fell sick and was treated for a mental health condition. He has submitted supporting medical evidence with regard to that condition and the Tribunal accepts the veracity of that evidence.

14. The applicant also advised the Tribunal that he was last treated for his mental health by a professional in October of 2018. He no longer takes medication for that condition and he is better now.

15. The applicant told the Tribunal that his employer informed him they had withdrawn their appeal to the Administrative Appeals Tribunal (differently constituted) concerning their nomination refusal decision. In due course, the applicant decided to resign his employment with Paradise Collections Pty Ltd and he did so on 26 November 2018 to take up other employment in Cairns as a cook. The applicant explained that he worked in Cairns, the Gold Coast, and now in Brisbane in the occupation of cook.

16. The applicant complained to the Fair Work Ombudsman with regard to employment entitlements and he submitted correspondence from them indicating that Paradise Collections Pty Ltd received a letter of caution in 2019. The applicant also submitted evidence from the Australian Taxation Office indicating that Paradise Collections Pty Ltd was placed into liquidation on 27 May 2019 and their investigation into his complaint regarding unpaid superannuation contributions was therefore closed.

17. The applicant submitted his own Notices of Assessment from the Australian Taxation Office to the Tribunal to show that he has been working over the last several years. He also submitted a copy of his letter of engagement with Paradise Collections Pty Ltd. These documents have been duly considered by the Tribunal.

18. The Tribunal raised with the applicant during the hearing that the refusal of the nomination application lodged by Paradise Collections Pty Ltd on 23 May 2018, which is reflected in the delegate’s visa refusal decision, combined with the evidence he submitted indicating that the employer withdrew their Tribunal (differently constituted) appeal of the nomination refusal decision, that the employer has been placed into liquidation, and that they are no longer trading as he explained during the hearing, tends to suggest that he is not the subject of an approved nomination and therefore does not satisfy the requirements for the Subclass 186 visa. The Tribunal invited the applicant to comment on these matters but he declined to do so.

19. For the sake of completeness, the Tribunal records that the applicant advised in his oral evidence that Paradise Collections Pty Ltd is no longer operating as a business.

20. The Tribunal invited the applicant to provide further oral evidence about the decision to refuse to grant him the Subclass 186 visa and he advised that he had no further information to provide. The applicant confirmed to the Tribunal prior to the hearing concluding that he had no further evidence to provide in connection with his application for review.

21. The Tribunal has very carefully considered all of the evidence in this case. 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. Accordingly, the requirements of cl.186.223(2) are not met. It follows that cl.186.223 is not satisfied by the applicant.

22. 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.

23. Given that 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 second and third named applicants do not satisfy the requirements of cl.186.311. The Tribunal so finds.

    DECISION

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

    K. Chapman
    Member