SHAH (Migration)

[2018] AATA 4102

SHAH (Migration) [2018] AATA 4102 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr AMRISH CHANDRAVADAN SHAH
Mrs BIJAL AMRISH SHAH

CASE NUMBER:  1712281

HOME AFFAIRS REFERENCE(S):           BCC2016/3187297

MEMBER:Hugh Sanderson

DATE:28 August 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 28 August 2018 at 2:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – nomination refused – no appeal lodged by nominator – profit and loss statement – annual turnover the business – not subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.223

CASES
Hasan v MIBP [2016] FCCA 1049
Singh v MIBP [2017] FCAFC 105

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 25 May 2017 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 26 September 2016. 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 accountant. The application of the second named applicant is based on her being a member of the family unit of a person who meets the primary criteria.

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 applicant was not the subject of an approved nomination.

   Background

6. The applicant applied for the visa on the basis of his employment and nomination by Esoft Solutions Pty Ltd for the position of an accountant. The Department on 14 March 2017 refused the nomination application by Esoft Solutions Pty Ltd. The applicant, in response to this information, stated that Esoft Solutions Pty Ltd had applied to the Tribunal for a review of that decision.

7. The delegate who considered the application was not satisfied that the fact that Esoft Solutions Pty Ltd had sought a review of the Department’s decision to refuse the nomination would justify delaying the decision. As the Department had refused the nomination application of the applicant’s sponsor he was not the subject of an approved nomination and therefore did not meet the criteria in cl.186.223. Accordingly, the application was refused. As the second named applicant was not the member of the family unit of a person who met the primary criteria her application was also refused.

8. The application of Esoft Solutions Pty Ltd for a review of the Department’s decision to refuse the nomination was finalised by the Tribunal on 12 June 2018. The Tribunal affirmed the Department’s decision to refuse the nomination application.

9. The Tribunal wrote to the applicant pursuant to s.359A of the Act on 14 June 2018. It was noted that as the Tribunal had now affirmed the decision to refuse the nomination application of Esoft Solutions Pty Ltd the applicant was not the subject of an approved nomination and accordingly the Tribunal may conclude that he did not meet the criteria for the grant of a visa. The Tribunal responded on 27 June 2018 claiming that his employer was willing to apply for another Employer Nomination as they were expecting further growth in the company. The applicant requested a delay in making a decision until the new nomination could be determined.

10. The applicant provided further documents including a profit and loss statement for the year ending 30 June 2017 for Esoft Solutions Pty Ltd. This purported to show that the income from the business for 2018 was $806,916.64, an increase of over $300,000 for the income disclosed by the business for the years ending 30 June 2017 and 30 June 2016. Other financial records of the business were provided.

11. The applicants appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

12. The applicants argued that the decision to refuse the nomination application of Esoft Solutions Pty Ltd was wrong because Esoft Solutions Pty Ltd was a profitable company. The applicants confirmed that no appeal had been lodged by Esoft Solutions Pty Ltd against the decision of the Tribunal. It was claimed that their migration agent had intended to file an appeal but did so a day late and so no appeal had been lodged. They said that no further application had been made by Esoft Solutions Pty Ltd to have a nomination application approved. The Tribunal noted that as the decision to refuse the nomination application by Esoft Solutions Pty Ltd had been affirmed by the Tribunal and no appeal had been lodged by Esoft Solutions Pty Ltd the issue of whether that decision was correct or not was not relevant.

13. The Tribunal explained to the applicant’s that the only issue before it was whether the primary applicant was the subject of an approved nomination. As the application by Esoft Solutions Pty Ltd had been refused by the Department and that decision had been affirmed on review by the Tribunal and that decision had not been appealed than there was no evidence that the applicant met the criteria for the grant of the visa. The applicants argued that it was not fair that they should be refused the visa on the basis of a failure by Esoft Solutions Pty Ltd to be approved as their nominator or appeal against that decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is the subject of an approved nomination.

16. 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.

17. The relevant nomination of the applicant was that applied for by Esoft Solutions Pty Ltd. This is referred to in the application for the visa being Transaction Reference Number EGOCK4FHHC. That nomination application by Esoft Solutions Pty Ltd was refused by the Department on 14 March 2017. An application for a review of that decision was unsuccessful and the Tribunal affirmed the decision to refuse the nomination application on 12 June 2018. No appeal has been lodged by Esoft Solutions Pty Ltd against that decision. As such, the applicant is not the subject of an approved nomination.

18. The applicant said that Esoft Solutions Pty Ltd had not applied for approval of a new nomination application, but they were hoping that either Esoft Solutions Pty Ltd or another employer would sponsor the applicant for the visa. As the nomination application of Esoft Solutions Pty Ltd has been refused and finalised, the applicant is not the subject of an approved nomination to which the declaration was made in his visa application. Accordingly, the applicant would not satisfy the criteria in cl.186.223(2) even if a new application was made by the same employer for the same position or a different employer (see Hasan v MIBP [2016] FCCA 1049 and Singh v MIBP [2017] FCAFC 105).

19. Even if a new nomination application had been made which would validate the current visa application, the Tribunal does not accept that it would be appropriate to delay any decision to allow the Department time to assess that application.

20. The nomination application of the applicant sponsor, Esoft Solutions Pty Ltd, has been refused by the Department and that decision has now been affirmed by the Tribunal. There has been no appeal by Esoft Solutions Pty Ltd against the decision of the Tribunal to affirm the decision to refuse the nomination application. At the time of this decision, therefore, the applicant is not the subject of an approved nomination.

21. The Tribunal has considered the application to postpone or delay any decision on the current application pending a further application by the applicant’s sponsor, Esoft Solutions Pty Ltd or any other potential employer, to be approved as a nominator of the applicant. The Tribunal does not accept that it is appropriate to await the outcome of any new application by Esoft Solutions Pty Ltd or any other employer. The Tribunal has access to only limited information which Esoft Solutions Pty Ltd may rely upon to support their nomination application. The outcome of the application, particularly as the application was previously refused by the Department, is speculative and the delays for the processing of any application likely to be considerable.

22. The position of an accountant is now subject to a number of caveats pursuant to IMMI 17/080 which would prevent the successful nomination application. This includes that the position of accountant is in a business that has an annual turnover of less than AU$1,000,000. Based on the information provided by the applicant, it would appear that this requirement is not met. In all the circumstances, the Tribunal does not accept that it is appropriate to postpone or delay the making of the decision in the current application.

23. As the applicant is not the subject of an approved nomination the Tribunal finds that cl.186.223 is not met.

24. 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. As the application of the second named applicant is based on the claim that she is a member of the family unit of a person who meets the primary criteria and as the applicant does not meet this criteria, the decision to refuse her application must also be affirmed.

    DECISION

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

    Hugh Sanderson
    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.