Shalu (Migration)

[2019] AATA 1963

Shalu (Migration) [2019] AATA 1963 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shalu Shalu

CASE NUMBER:  1804140

HOME AFFAIRS REFERENCE(S):           BCC2015/3472666

MEMBER:Warren Stooke AM

DATE:18 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 18 February 2019 at 11:58am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – restaurant not running – applicant does not have approved standard business sponsor – applicant has not met requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 186.233, rr 1.13A, 1.13B

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 1 February 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 November 2015. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook - ANZSCO 351411.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the applicant was found not to have an approved standard business sponsor.

6. The applicant appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

8. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 1 February 2018, a copy of which was provided to the Tribunal by the applicant.

9. The applicant provided the Tribunal with an explanation, as to her understanding for the refusal of the visa application by the delegate. The applicant confirmed to the Tribunal that the visa cannot be granted and that the restaurant is not running at the moment. She also stated that she was not agreeable to the decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant has an approved standard business sponsor.

12. The applicant provided evidence that she is currently working as a chef in a restaurant that is not the original sponsor, as that sponsor, D’Affaires Australia Pty Ltd, no longer operates the restaurant in which she was employed.

13. The applicant gave evidence that she is now working for Shihara Indian restaurant, as a chef and that she currently does not have a sponsor.

14. The applicant advised the Tribunal that she had complied with all her obligations relating to her nomination; with the appropriate qualifications and that her position was affected when her sponsor had problems with the Australian Taxation Office and other government instrumentalities.

15. The applicant explained that because of her employer’s mistakes her visa was affected.

16. The Tribunal pursuant to s359AA provided the applicant with adverse information concerning the deregistration of D’Affaires Australia Pty Ltd, which is no longer a legal operating entity. The Tribunal explained the reason for tabling the document and the relevance of the information. The applicant was provided with time to read the document and asked if she required additional time, which she declined.

17. The document provided by the Tribunal to the applicant confirms that D’Affaires Australia Pty Ltd Australian Business Number was cancelled from 23 August 2017.

18. The applicant made the comment: “Why does it affect me? He should be the one”.

19. The applicant confirmed to the Tribunal that the owner of D’Affaires Australia Pty Ltd had not sought any payment from the applicant and whilst he was late in making the payment of wages, the applicant eventually received all her entitlements. The applicant stated that she had $11,000 to $12,000 in superannuation with REST.

20. The applicant requested that she be accommodated to make a statement and said:

    “I would just like to say – why is his visa not cancelled? I was doing the right thing. He is the one that committed fraud – if it was me I should have been the one penalised. I have been physically and mentally stressed. My husband is offshore waiting for PR for the last 4 years.

21. The applicant further stated: “I don’t have a sponsor. I don’t want to get into this again. I have all the skills and want to apply for a visa myself.”

    Nomination of a position

22. 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.

23. 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.

24. The evidence before the Tribunal is that the applicant does not have an approved standard business sponsor. As such, the Tribunal finds that the applicant has not met the requirements of  cl.186.223

25. Therefore, cl.186.223 is not met.

26. 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

27. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Warren Stooke AM
    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.