Sekhon (Migration)

[2021] AATA 5590

Sekhon (Migration) [2021] AATA 5590 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ramandeep Singh Sekhon
Mrs Gagandeep Kaur Grewal
Mr Viraj Singh Sekhon

CASE NUMBER:  2017542

HOME AFFAIRS REFERENCE(S):          BCC2017/2340260

MEMBER:R. Skaros

DATE:11 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2021 at 10:05am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Federal Circuit Court remittal – temporary residence transition stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – business sold and position no longer available – hardship to applicant and family – no provision for extenuating circumstances – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 Home Affairs on 2 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 June 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 (Cth) (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 ANZSCO 351411.

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 associated nomination was refused by the department.

6. On 11 June 2020 the Tribunal (differently constituted) affirmed the delegate’s decision to refuse the grant of the visas. The applicants sought judicial review of that decision and, on 26 November 2020, the Court remitted the matter to the Tribunal for reconsideration.

7. On 30 August 2021 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.

8. On 10 September 2021, the applicant wrote to the Tribunal stating that he is not able to provide all the information before 13 September 2021. He stated that he needs additional time to discuss the case with his legal adviser. The applicant requested an extension of four weeks. On 13 September 2021, the Tribunal wrote to the applicants informing them that it considered their request carefully and has agreed to grant an extension of time, but only until 27 September 2021 and that a response should be received by that date.

9. On 20 September 2021, the applicant provided a response to the Tribunal’s s.359A letter.

10. The applicant appeared before the Tribunal on 22 September 2021 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the nomination in relation to the applicant has been approved.

    Nomination of a position

13. 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.

14. In this case the applicant applied for the visa on the basis of a nomination made by WJ Trading Co Pty Ltd for approval of a position in the occupation of Cook. The delegate refused the nomination and WJ Trading Co Pty Ltd applied for review of the decision to refuse the nomination. On 27 May 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.

15. The Tribunal invited the applicants to comment, in writing, on the above information which it considered would be part of the reason for affirming the decision under review.

16. In his response to the Tribunal, the applicant stated that the Department refused the application because they did not accept that he was working full-time as a cook. He stated that to apply for permanent residency he needed to work at least 2 years full-time during the 4 years that he held the Subclass 457. He stated that he worked for over three and half years full-time as a cook but his PAYG did not match the employment contract of $52,000. He stated his PAYG did not match as the restaurant owner closed the restaurant for about 4 to 5 weeks every year during Christmas time and he was not paid during the holidays. He stated that this was the company's mistake. He stated that he has been suffering over last 4 years and did not know at that time that he had to show an income of $52,000 every year.

17. In addition to the above, the applicant provided the various documents, including, PAYG summaries for 2014, 2015, 2016 and 2017 financial years showing respective gross payments of $46,913, $50,735, $37,854 and $53,241.The applicant also provided his Commonwealth bank statements from November 2013 to June 2016, showing the wages paid to him under the reference ‘Ming Court Wage’.

18. At the hearing, the applicant reiterated the above information. He also informed the Tribunal that the restaurant was sold and that he is no longer working for the nominating employer. The applicant detailed the hardship that he and his family have experienced as a result of the refusal. The applicant also indicated that he was in the process of securing another nomination for a regional skilled/employment visa. He stated that he is unable to depart Australia to lodge an application offshore due to border restrictions and asked if the Tribunal could delay the making of its decision until he can secure another visa.

19. The Tribunal has considered the matters raised by the applicant. Firstly, as explained to the applicant at the hearing, the Tribunal is not reviewing the decision in relation to the nomination. The only decision it has before it, is that which relates to the visa refusal. The issues raised by the applicant about him working full time for a period of three years for the nominating employer relates to the requirements for approval of the nomination, and the Tribunal has no power to revisit the reasons for the nomination refusal.

20. Secondly, the applicant has indicated that he is no longer working for the nominating employer, which the tribunal explained is information relevant to the requirement in cl.186.223(4) which requires that the position is still available to the applicant. The Tribunal acknowledges the hardship experienced by the applicant and his family, however, there is no provision in the legislation to take into account any extenuating circumstances. The Tribunal must make its decision in accordance with the legislative provisions.

21. The Tribunal has considered the applicant’s request to delay the making of its decision, however, as explained to the applicant at the hearing, there would be no utility in doing so. This is because no amount of delay could result in a different outcome in this case. The Tribunal does not consider it in the interest of administrative efficiency to delay the making of a decision in circumstances where there is no prospect of a favourable outcome. For these reasons, the Tribunal has decided to proceed to a decision in this review.

22. The evidence before the Tribunal is that the nomination of the position in relation to the applicant made by the nominating employer has been refused. The applicant is therefore unable to meet the requirements of cl.186.223(2). The evidence before the Tribunal also indicates that the applicant is no longer working for the nominating employer. The position is therefore no longer available to the applicant. He is therefore unable to meet the requirements of cl.186.223(4).

23. For the above reasons, cl 186.223 is not met.

24. The second named applicants applied for the visas as members of the family unit of the first named applicant. As the first named applicant does not meet one of the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the second named applicants.

25. 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

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

    R. Skaros
    Senior 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.