Rani (Migration)

[2019] AATA 266

Rani (Migration) [2019] AATA 266 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parveen Rani
Mr Baldev Singh

Manjot Singh

CASE NUMBER:  1617358

DIBP REFERENCE(S):  BCC2015/1705272

MEMBER:Ian Berry

DATE:01 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicant’s meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·   Clause 186.223(3A)

The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the 2^nd and 3^rd named applicant’s meet the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

·   Clause 186.311 of Schedule 2 to the Regulations.

Statement made on 01 February 2019 at 2:10pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visas – Subclass 186 (Employer Nomination Scheme) – adverse information about the person making the nomination – soliciting supporting testimonials from customers – adding newborn child to review application – secondary applicant remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 2.08

CASES

MIMA v Lim (2001) 112 FCR 589

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 on 5 October 2016 to refuse to grant the applicant an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The 1^st named applicant applied for the visa on 15 June 2015. The delegate refused to grant the visa based on the ‘adverse information’: Regulation 186.223(3A).

3. The 1^st and 2^nd named applicants appeared before the Tribunal on 25 January 2019 to give evidence and present arguments. Both gave evidence. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether there is evidence supporting r.186.223(3A), that the is ‘adverse information’, and if so whether it is reasonable to disregard any adverse information.

   Background

6. The 1^st named applicant’s family entered Australia on 10 June 2009, after the 1^st named applicant was granted a student visa. At that time, the family consisted of her husband and their young son. She completed an ELICOS course, then completed a Diploma of Hospitality between 21 June 2010 and 14 October 2011 and between 19 July 2011 and 17 November 2011, completed the Certificate III in Hospitality (Commercial Cookery).

7. As a cook, the applicant undertook work with an employer between 22 October 2012 and 7 December 2012. It was with this employer, she was sponsored as a cook for a UC 457 visa. As a result of sickness, she took two weeks off successively. Though a doctor’s certificate was tendered, she received a termination notice.

8. Subsequently she obtained employment with another employer, as a cook, from 1 April 2013 to 24 November 2013. This business was purchased by another employer who agreed to sponsor. After the sale of the business, she was then employed by Broad Creations Pty Ltd as a cook. This employer made an Employer Nomination application which was approved. The 1^st named applicant’s visa application was made on 15 June 2015 which was refused by the delegate.

9. The reason for the delegate’s refusal is based on ‘adverse information’ the details of which are:

   a.The Department conducted two site visits. On 6 February 2015, the first was for the purpose of business monitoring. Departmental officers visited the applicant’s place of work and on enquiring as to members of the staff, and enquired as to the whereabouts of the 1^st named applicant. It was reported to the officers that she was absent for that day because of sickness.

   b.The Department conducted a 2^nd site visit on 18 April 2016. By this time the applicant had lodged her visa application, and the officers visit was to assess the 1^st named applicant’s 186 visa application. At this visit the applicant was absent from work.

   c.Also, information had been received from a source known to the Department of certain allegations relating to the 1^st and 2 named applicants. It was alleged they were speaking to people inviting them to  provide  statements concerning her working fulltime at the restaurant. Specifically, the allegations  from a non-disclosed source said  “they explained to me that their lawyer needs them to get as many declarations for people around the restaurant and customers. They said that we will write it up for you and you will just need to sign it and get a JP to sign also.”

10. From 3 October 2016 to 26 November 2018, the applicant took maternity leave. She said that she actually took 4 weeks annual leave immediately before taking the maternity leave. The applicant in her evidence said that she needed to take this leave because her husband was engaged in full-time employment and there was not anybody else to help in assisting her with the care of her baby and part of that care was breast feeding her baby son. The applicant’s baby was born on 16 November 2016.

11. The 1^st named applicant provided documentary evidence of her full-time employment with her current employer:

    a.PAYG Payment Summary for the applicant for the financial year 1 July 2015 to 30 June 2016, denoting a taxable income of $54,028.00 and total tax withheld of $10,196.00; and

    b.The applicant’s payslips for the period 17 November 2015 to 22 August 2016.

12. The applicant was closely examined in relation to her current employment and employment history. In brief, she says she travels to and from work by bus, for 7 days a week, working from 4 pm to 9 pm from Monday to Friday and 2.30pm to 9pm for the weekends. In May 2018, the business has moved from Waterford West to Hamilton with a name change. It employs a chef and three cooks, and caters for lunchtime and evening diners. The opening times are midday to 2.30pm and 5.30pm to 9pm.

13. After the cessation of her maternity leave, recommenced her employment on 27 November 2018.

14. Clause 186.223(3A) is as follows:

    186.223 

    (1)  The position to which the application relates is the position:
    (a)  nominated in an application for approval that:

    (i)  identifies the applicant in relation to the position; and

    (ii)  is made in relation to a visa in a Temporary Residence Transition stream; 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.

15. The Tribunal had before it, Statutory Declarations from various patrons and local business owners and local workers, declaring the applicant was working at the business for the relevant times. The Tribunal noted the declarations and statements but gives little weight as the makers of these declarations and statements did not give evidence. The Tribunal could only give little weight as the  testimonials were vague in parts and were unable to be tested by questions.

16. The Tribunal is satisfied that:

    a.It is not improper for the 1^st named applicant to prepare her application for review by attempting to enlist persons who may be able to assist her in proving that she has been in full-time employment with a current employer. The 2^nd named applicant denies attempting solicit testimonials. The Tribunal accepts the version of that applicant.

    b.That there was no evidence of adverse information about either the 1^st or 2^nd named applicants.

17. The Tribunal finds that there is no adverse information relating to the 1^st or 2^nd  applicants in terms of cl.186.223(3A).

18. The Tribunal also finds that she has not offended this clause in relation to her speaking with persons who may assist her in her application for review by asking them to provide declarations and statements.

    A child born after the Delegate’s Decision

19. On 11 January 2018, a request was made by the applicant, to include the 1^st and 2^nd applicants’ 2^nd child born 16 November 2016, was received by the Tribunal. The request by the applicants was for the child to be ‘included’ in the ‘outstanding application for review’ with the parents.

20. Regulation 2.08 of the Regulations, effectively says, if a non-citizen applies for a visa, and after the application is made, but before it is decided, a child born to that non-citizen is combined in the applicant’s application.

21. However, In MIMA -v- Lim (2001) 112 FCR 589, the Court took the view that the phrase ‘after the application is made but before it was decided’ meant before it was decided by the Minister or his delegate.  In this instance, the delegate’s decision was made on 5 October 2016 and the child was born on 16 November 2016.

22. The child, in respect of this review by the Tribunal, does not fall within the tribunal’s jurisdiction.

23. Therefore, the Tribunal does not make a decision in respect of the child of the applicant’s born 16 November 2016.

    DECISION

24. The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the applicant’s meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Clause 186.223(3A)

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the 2^nd and 3^rd named applicant’s meet the following criteria for a subclass 186 (employer nomination scheme) visa:

    ·Clause 186.311 of Schedule 2 to the Regulations.

    Ian Berry
    Member