Shafqat (Migration)

[2020] AATA 232

Shafqat (Migration) [2020] AATA 232 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mubeen Shafqat
Mrs Komal Mubeen
Miss Haram Mubeen
Ms Adan Mubeen

CASE NUMBER:  1901691

HOME AFFAIRS REFERENCE(S):           BCC2018/939557

MEMBER:Cathrine Burnett-Wake

DATE:31 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2020 at 8:40am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination application refused – 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 Home Affairs on 22 January 2019 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 27 February 2018. 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 (ANZSCO 351411) with SEWPERSAD HOLDINGS PTY LTD.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination lodged by SEWPERSAD HOLDINGS PTY LTD was not approved.

6. The applicants appeared before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Raj Sewpersad, who is the applicants’ employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

9. 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.

10. 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.

11. On 27 November 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicants to comment on or respond to the information. The particulars of the information were that the application for approval of the related nominated position, made by SEWPERSAD HOLDINGS PTY LTD was refused by a delegate of the Minister for Immigration. And, further, that the nominator sought a review of that decision but the matter was affirmed by the Tribunal. Meaning that the nominator’s application for the nominated position has not been approved. The letter further explained to the applicants that this information was relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

12. On 11 December 2019, a response was received via the then representative, which outlined that the applicants do not intend to withdraw their application and wish to appear at a hearing.

13. On 13 December 2019, the Tribunal invited the applicants to attend a hearing on 30 January 2020.

14. On 23 January 2020, the Tribunal received a letter from the applicants which included several annexures. The letter states as follows:

    I write this letter with the intention of presenting you with a complete picture of my life from the moment I arrived in Australia to the present, and also to tell you how I could be affected if the current circumstances of uncertainty continue.

    Firstly, I arrived in Australia back in 2009 and completed my studies (Certificate III & IV in Commercial Cookery, Diploma of Business and Diploma of Management). I started my work as a Cook at the end of 2013 with Goroby’s Investments Pty Ltd and continued in different places under the same business name. Later, in 2014, I was granted the 457 visa subclass under the sponsorship of Goroby’s Investments Pty Ltd under the position of “Cook”. It is important to mention that the business was approved at that time and, therefore, I was granted visa subclass 457. In 2015, the business changed from Goroby’s Investments Pty Ltd to Sewpersad Holdings Pty Ltd. Therefore, a new nomination was applied and the business nomination was approved. In 2018, I applied for the nomination for a permanent visa with the same business and now the nomination has been refused. It is worth mentioning that my tax was paid on time and my superannuation was paid without delay (Annex. 1).

    Mr. Raj may have missed some of the payments on behalf of his staff, however, that was never under my control as an employee. I know that he must have complied now by paying superannuation later upon learning of the situation (statement of Mr Lakraj Sewpersad –

    Sewpersad Holdings Pty Ltd along with supporting documents related to superannuation submissions are attached as Annex. 2).

    Secondly, the refusal of my nomination after working for more than 5 years for an employer resulted in extreme impacts on my life, including the interruption of peace and harmony in my family, and, as a matter of fact, it is not due to my own negligence, or even close. I arrived in Australia as a single person but with the time and blessings of God we have become a family of four, with two daughters, the oldest is 3 years old and the youngest only 1, both were born and raised here in Australia. My two children are acclimatized to this environment and cannot take food from other places, which we have learned from recent experience when we had to travel back to Pakistan since my wife had to appear in the exams. Initially, they had difficulty adapting to the environment there, since they lived most of the time in Australia, but later, they remained ill and allergic to multiple factors, mainly food and water. In fact, my wife and children always prefer visiting the same attending physician (GP), since he understands well the condition of my children.

    Thirdly, I hail from a family that has always been the victim of a tribal / social rivalry in Pakistan since 1996, which often results in bloodshed, murders and false accusations (false nomination in FIR) in the Pakistani justice system. Recently, in December 2019, my paternal uncle was shot twice in the legs, but fortunately he survived (Annex. 3). In 2000, my father was charged with a false crime and released without any conviction in 2005 after being in custody for 5 years. In 2008, one of my father's first cousins was killed in a link to the same rivalry (FIR is given as Annex. 4). These are the circumstances from which I escaped traveling to Australia in the first place. Once I was guided to apply for a protection visa owing to the prevailing situations back in my home country, but I refused to do so because I did not want to be a burden on the economy of this country. Also, I trusted my skills that I would complete my education and get a job, which I did. Furthermore, one of my younger brothers is Ph.D. and serving in Pakistan owing to his obligations under scholarship payback, and his life has become terrible avoiding such unpleasant circumstances. My youngest brother followed me and currently lives in New Zealand.

    Finally, the refusal of my nomination and working hard for so many years without a positive ending will take us all to my home country, where my life will never be safe again, and my wife and children, how could I put their lives in such danger? Therefore, it is requested that my circumstances may please be understood on humanitarian grounds and I urge the honorable members to reconsider my request for approval of the nomination that can save a life and keep my family away from the norms of bloodshed and murder, which I have tried to escape with all my efforts a long time ago.

    Thank you.

    Mubeen Shafqat

15. At hearing the applicant conceded that he was aware that the nomination made by SEWPERSAD HOLDINGS PTY LTD had been affirmed by the Tribunal. However, that he wished to explain to the Tribunal the circumstances.

16. The applicant explained that he had come to Australia initially on a student visa, completed his studies and progressed to a 457 visa. He outlined he thought that transitioning to residency should have been easy as he did nothing wrong and that he has been caught out because his employer may have not met all his superannuation obligations and that he was a victim of circumstances. The applicant told the Tribunal that he had been in Australia for a long time and had made a life for himself and his family and that it would be extremely difficult for them to return to Pakistan especially because he is at risk of harm due to tribal tensions which have resulted in his father being imprisoned for a period, an uncle who was shot and a cousin who was murdered.

17. The applicant told the Tribunal that he was of the belief that he would have been eligible for a protection visa upon arrival to Australia because of the tribal tensions his family experienced, however, he did not want to burden the Australian economy and trusted that his skills would enable him to complete his education, get a job and find an alternative pathway for residency, which he did.

18. The secondary applicant also gave evidence and outlined her desire to stay in Australia with her family.

19. The Tribunal had a letter of support from the applicant’s employer Raj Sewpersad of SEWPERSAD HOLDINGS PTY LTD which detailed that he was an excellent employee and the business relied heavily on him for its operations. The Tribunal also telephoned Mr Sewpersad during the hearing to take evidence. Mr Sewpersad confirmed that the applicant was a valued and key employee and the business success depended on him. Mr Sewpersad also outlined that he was the aware that the applicants faced issues of harm if they returned to Pakistan.

20. The Tribunal explained to the applicants that it had no discretion to consider the circumstances that led to the nomination being refused and the subsequent decision by the Tribunal to affirm it. The Tribunal outlined to the applicants that it also had no discretion regarding their personal circumstances including assessing any protection related claims they may have and that it was solely determining and confined to whether there was an approved nomination relating to this visa application under review and that the information before the Tribunal was there was no approved nomination.

21. The facts are not under dispute, and both parties agree that there is no approved nomination.

22. Therefore, cl.186.223 is not met.

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.

    DECISION

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

    Cathrine Burnett-Wake
    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.