Shakir (Migration)

[2022] AATA 4152

Shakir (Migration) [2022] AATA 4152 (13 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ghulam Abbas Shakir
Mr Haseeb Ahmad
Miss Atiya Fatima
Miss Eman Fatima
Master Kabir Faizan
Master Umar Siddique
Ms Mamoona Bibi
Ms Zhemal Malika

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry

CASE NUMBER:  1902498

HOME AFFAIRS REFERENCE(S):          BCC2016/831731

MEMBER:Penelope Hunter

DATE:13 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 13 October 2022 at 4:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Marketing Specialist – the sponsoring company has been deregistered – Tribunal is not satisfied that the position is still available to the applicant –referral to the Minister refused – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, 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 (Cth) (the Act).

2. The applicants applied for the visas on 29 February 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. In this matter the first named applicant, Mr Ghulam Abbas Shakir (the applicant) is the primary applicant. 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. The other visa applicant’s are members of the applicant’s family unit, and need satisfy only the secondary criteria.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Marketing Specialist, for his nominating employer H Khans Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(4) of Schedule 2 to the Regulations because they were not satisfied that the position was still available to the applicant. The applicants have provided to the Tribunal a copy of the decision record under review.

6. On 10 June 2022, the applicants were invited to attend a hearing before the Tribunal on 7 July 2022. On 15 June 2022, the Tribunal received a request for postponement on the basis that a witness for the applicants, a representative of their employer, Mr Kamran Khan, was overseas at the relevant time. The Tribunal consented to the request and the hearing was postponed.

7. On 29 June 2022, the applicants were invited to attend a hearing before the Tribunal on 29 August 2022 to give evidence and present arguments. On 16 August 2022, the Tribunal received a further request for hearing postponement on the basis that their witness remained overseas.  On 16 August 2022, the Tribunal wrote to the applicants and advised that the postponement request was refused, as there no evidence to explain why the witness had extended his travels, and advising that the Tribunal would take evidence from the witness via a statement or by telephone or video at the hearing.

8. On 25 August 2022, the Tribunal received a further request for a postponement from the applicants. The submission contained evidence from DHQ Teaching Hospital Sahiwal, purporting to relate to the death of the uncle of the applicant’s witness, Mr Kamran Khan. It was also claimed that the applicant was not available to attend the hearing on 25 August 2022.

9. On 26 August 2022, the Tribunal wrote to the applicants and advised that the hearing had been rescheduled to 20 September 2022.

10. On 7 September 2022, the Tribunal received correspondence from the representative of the applicant advising that the applicants had requested they withdraw from the matter.

11. On 14 September 2022, the Tribunal received correspondence appointing a new representative for the applicants. On 15 September 2022, the Tribunal provided to the representative for the applicants written material requested in accordance with s 362A of the Act.

12. On 16 September 2022, the representative for the applicant requested a postponement of the hearing for at least three weeks as they had a busy practice and it was claimed it was unfair to the applicants if they rushed. It was further claimed that the applicants were unable to contact their witness. The Tribunal refused the request for the postponement as it had already agreed to postpone the matter on two occasions, and that the choice and change of representation was a matter within the control of the applicant in circumstances where they had been aware of the intention of the Tribunal to bring the matter to a hearing since 10 June 2022.

13. The applicant did not attend the Tribunal in person on 20 September 2022, at the relevant time. The Tribunal subsequently had contact with the representative for the applicants who advised that they thought the hearing was to take place via video. The Tribunal then arranged for a videoconference to take place immediately via MS Teams. The applicant appeared to give evidence and present arguments. The Tribunal also received oral evidence from the fifth named applicant, Mr Umar Siddique. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The representative of the applicants also participated in the hearing.

14. Following the hearing, the representative of the applicants sought and was granted an extension until 28 September 2022 to provide submissions to the Tribunal. On 28 September 2022, the Tribunal received a further request for an extension of time to provide submissions for an undefined period as the applicant had informed his representative he would be providing further information. The Tribunal refused the request given the history of the matter, and it was considered that the timely provision of information by the applicant was a matter within his control.

15. On 29 September 2022, the Tribunal received submissions from the representatives for the applicant the content of which, where relevant, will be discussed below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. Clause 186.223 of Schedule 2 to the Regulations is set out in full and annexed to this decision. It is a requirement of cl 186.223(4) that the position still be available to the applicant. This is the position referred to in the nomination application to which the visa application relates.

18. According to the visa application, the nomination to which the application related was that filed by H Khans Pty Ltd and approved by the Department on 7 December 2016. The nomination was for applicant to work in the position of Marketing Specialist (ANZSCO 225113).

19. The decision record of the delegate, sets out that the Department received notification on 12 September 2018 from H Khans Pty Ltd, through their representative, that they no longer intended to employ the applicant. The delegate then wrote to the applicants with an invitation to comment.

20. The applicants in response provided a response to the Department which included a letter from Kamran Khan, dated 22 October 2018, who claimed that he was the director the applicant’s nominating employer. The letter set out the following:

    "I, Kamran Khan, Managing Director of H KHANS(T) PTY LTD, 4 Pulteney St Taree NSW
    2430 make the following declaration under the Statutory Declarations Act 1959:
    I am Managing Director of H Khans trading as Pandori Indian Restaurant.
    We have employed Ghulam Abbas Shakir as an employee 12/08/2012
    We have also recently purchased a new business and are in the process of opening up very
    soon.
    Abbas Shakir has been working with us for a very long time. He is an asset to our workplace
    and is a valuable connection to fellow colleagues, customer and members of the public. I
    kindly ask you to disregard my request to withdraw the nomination application which you
    received through my migration agent (Anthony Ross) on the 12th September 2018.
    We don’t want to lose him as an employee
    We wish to retain him on a permanent basis in his original nominated position. The personal
    dispute we had, which partly arose due to the stress caused by the length of time it has taken your office to process this application, has now been resolved and we wish for our employer/employee relationship to continue"

21. The delegate also sets out that further inconsistencies were subsequently noted between publicly available information and the letter from Mr Khan. Particularly, information on the Australian Securities and Investment Commission (ASIC) website showed that the business name, ‘ Pandori Indian Restaurent’ was registered to H Khans Pty Ltd until 25 January 2018 when it was cancelled, and a search of other publicly available information showed that the business or trading name “Pandori Indian Restaurant or Restaurent” was not operating out of the address, 4 Pulteney Street Taree NSW 2430 and another unrelated entity was operating from that address. These matters were then put to the applicants again for comment.

22. In a response dated 11 December 2018, the representative for the applicants claimed that the nominating employer had inadvertently allowed their business registration to lapse and only became aware of it upon receipt of the correspondence by the Department. A further letter from the accountant for the nominating employer, dated 10 December 2018, was submitted.

23. The delegate noted that the response by the applicants did not address the concern that the business was not operating at the claimed address of 4 Pulteney Street, Taree NSW. It was further considered that there was no evidence that the business operated a food service business which to which the tasks of the nominated position of Marketing Specialist mostly related. The delegate consequently determined that they were not satisfied that the position was still available to the applicant.

24. At the Tribunal hearing the applicant claimed that he was currently working for his nominating employer in the position he identified as grocer and chef, at premises in Rooty Hill and Mt Druitt. The Tribunal put to the applicant that the nominated position was claimed to be in Taree in the position of Marketing Specialist. The applicant responded that he was formerly working as a Marketing Specialist but that due to the COVID-19 pandemic there was not so much work around. The applicant said that he used to work at the Pandori Indian Restaurent in Taree, but his children were studying in Sydney and asked him to return three years earlier. 

25. The Tribunal asked the applicant the name of the business he was working for and he said Khan Baba Restaurant and Catering. The Tribunal then identified to the applicant that the nominating employer for the purposes of his application was H Khans Pty Ltd. The applicant replied to the Tribunal that he had not known that this company was no longer viable and had closed.

26. Pursuant to the provisions of s 359AA of the Act the Tribunal put to the applicant information available from the ASIC website that the company H Khans Pty Ltd was deregistered on 10 November 2020. The applicant was further advised that the information was relevant as the entity that had nominated him for the purposes of the visa application had ceased to exist and if the Tribunal relied upon the information the Tribunal may not be satisfied that position would still be available to the applicant, and consequently he may not satisfy a primary criteria for the visa and the decisions under review would be affirmed. The applicant elected to respond immediately and said that when his visa was refused he had experienced tension and he then sent may of his family back to Pakistan and they were still there. He claimed that he had only be informed a few days before the hearing that the company had closed and he said felt without hope. The Tribunal commented that he had previously made representations to the Department about working in Taree at Pandori Indian Restaurent, and that as he was not working there the last three years he should have been aware that his employment circumstances relevant to the visa application had changed. The applicant responded that he was working in Taree at some time in 2018, it may not have been when the refusal happened but his wife would remember. His comments did not really address the Tribunal’s concerns.  

27. The Tribunal spoke with the applicant about his claims that his current employer was Khan Baba Restaurant and Catering, and the applicant submitted to the Tribunal that had he believed this was the same employer. Again pursuant to the provisions of s 359AA of the Act the Tribunal discussed with the applicant information held by ASIC that the company Khan Baba Restaurant and Catering Pty Ltd was de registered on 19 January 2020. The applicant was informed that this was important because the company he claimed to be working for was a separate entity to H Khans Pty Ltd, it had also ceased to exist, and it was not the nominating employer for the purposes of the visa application. The applicant was advised that if the Tribunal relied on the information it appeared to further demonstrate that the position was not available to him, and consequently decisions under review would be affirmed. The applicant elected to respond immediately and said that he did not know that this company was also closed. He said that he did not wish to provide any lies to the Tribunal but claimed that he was still working.

28. The Tribunal asked the applicant about his witness Mr Kamran Khan. The applicant said that Mr Khan had made promises to him that he would attend the Tribunal hearing and clear everything up, but now he was refusing to come. The applicant confirmed that Mr Khan was not available to give evidence in the matter. He said Mr Khan had told him this on 3 September 2022.

29. Mr Umar Siddique told the Tribunal that he had seen his father work hard for the family. He was aware that he had worked for the nominating employer H Khans Pty Ltd, his father had worked for a lot of companies.

30. In submissions to the Tribunal at the hearing the representative of the applicants conceded that in the current circumstances the applicant could not satisfy the visa criteria. He claimed that the applicant was a vulnerable person, without English ability who may be illiterate and had been led astray by his employer. The Tribunal however notes that as part of the visa application the applicant has submitted evidence of his qualifications and English language ability.

31. In post hearing submissions received on 28 September 2022, it was claimed that when H Khan Pty Ltd sought to withdraw the nomination before the Department in September 2018 it was due to a restructuring of the business under a new name Sheikh and Khan Pty Ltd.

32. On the material before it the Tribunal finds that the related nomination application for the purposes of the visa applications was granted to H Khans Pty Ltd, and the relevant position was a Marketing Specialist (ANZSCO 225113). The position of Marketing Specialist according to ANZSCO has the role of identifying market opportunities and advising on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services. On the information before it the Tribunal finds that the company H Khans Pty Ltd has been deregistered as of 10 November 2020, and no longer operates. Further on the evidence of the applicant, he is currently employed with a different entity in the role of chef and grocer. There is no evidence before the Tribunal of a relevant nomination in place for Sheikh and Khan Pty Ltd or the existence of this entity proximate to the time of the visa application, or decision of the delegate. It follows that the Tribunal is not satisfied that  position is still available to the applicant.

33. Therefore, cl 186.223(4) is not met.

34. 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.

35. As the applicant, as primary visa applicant does not meet the primary criteria for the grant of the visa, the remaining visa applicants cannot meet the secondary criteria for the grant of the visas (as members of the family unit of a person who holds subclass 186 visa on the basis of satisfying the primary criteria).  There is no evidence that the second, third, fourth, fifth, sixth, seventh and eighth named visa applicants would otherwise meet the primary criteria.

    Other Matters

    Request for the Tribunal to refer the matter to the Minster for the exercise of powers under s 351 of the Act.

36. In post-hearing submissions it was requested by the representative of the applicants that they be given a chance to correct the procedural issues which have come about by the nominator closing one organisation and opening another due to business restructuring, and that the Tribunal refer the matter for consideration by the Minister pursuant to s 351 of the Act. It was claimed that the new organisation Sheikh and Khan Pty Ltd was willing to sponsor the applicant.

37. Section 351 of the Act provides that if the Minister thinks it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 349 of the Act another decision, being a decision that is more favourable to a visa applicant, whether or not the Tribunal had the power to make that decision.

38. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. Ultimately, in the particular circumstances the Tribunal has declined the request for the following reasons.

39. Firstly, the submissions received on behalf of the applicants do not adequately address the unique and exception criteria as contained within the current guidelines for Ministerial intervention as set out on the Department’s website.[1] The Tribunal is not satisfied on the material before it that the difficulties for the applicants arise due to a mere procedural issue, and has difficulty with the claims of the applicant that he may now be sponsored by employing entity that was also claimed to have led him astray. The Tribunal’s task is not to be an advocate for either the delegate or the applicants. Its task is to determine whether a particular visa applicant meets the particular visa criteria that is under review. Furthermore, the exercise of the discretion by the Minister is non-compellable. There is nothing to suggest, and to the knowledge of the Tribunal, no policy directs that a referral made by the Tribunal is treated more favourably that a request made directly by and applicant to exercise powers under s 351 of the Act.

    [1] Ministerial intervention (homeaffairs.gov.au)

40. It remains open to the applicants to directly request themselves the exercise of powers under s 351 of the Act by the Minister.

    DECISION

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

    Penelope Hunter
    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.