Sharma (Migration)

[2021] AATA 5607

Sharma (Migration) [2021] AATA 5607 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Sharma

CASE NUMBER:  1931997

HOME AFFAIRS REFERENCE(S):          BCC2018/965544

MEMBER:Karen McNamara

DATE:6 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 6 April 2021 at 10:41am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Chef –nominator withdrew their nomination review application – nomination application associated with the position was not approved –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

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 to refuse to grant Mr Ashish Sharma (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 February 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The decision record dated 31 October 2019, states that the delegate refused to grant the visa because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nominated position was refused on 30 September 2019.

6. The Tribunal notes that the applicant lodged his application under the Subclass 187 visa Regional Sponsored Migration Scheme and as such should have been assessed by the delegate under cl.187.233. Accordingly, the Tribunal has considered this application for review against the relevant criteria under cl.187.233 of the Regulations.

7. The applicant lodged a review application with the Tribunal on 11 November 2019 and provided the Tribunal with a copy of the delegate’s decision to refuse the visa.

8. On 16 February 2021, the Tribunal invited the applicant under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 24 March 2021 at 1:30 pm.

9. On 18 February 2021, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. 

10. The information related to information before the Tribunal that shows the nominator Shivam Australia Pty Ltd withdrew their nomination review application on 14 October 2020.

11. The Tribunal explained in its letter of 18 February 2021, that this information is relevant because it suggests under r.187.233(3) the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister. The Tribunal may therefore find that the applicant does not meet the requirements for approval of the visa application and the decision under review may be affirmed.

12. The Tribunal’s letter of 18 February 2021 additionally stated the following;

    ‘Your comments or response should be received by 4 March 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 4 March 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 4 March 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 16 February

    2021. Please note, if we do not receive your comments or response within the  

    period allowed or as extended, we may make a decision on the review without
    taking any further action to obtain your views on the information. You will also
    lose any entitlement you might otherwise have had under the Migration Act 1958
    to appear before us to give evidence and present arguments.’

13. On 4 March 2020, the applicant provided to the Tribunal a submission including the following information;

    ·Job Ready statement of prior employment

    ·Reference from Brasa Bar & Grill

    ·PAYG summary 2019

    ·Correspondence from Department of Home Affairs re: application for Bridging Visa and lodgement of subclass 187 visa application dated 28 February 2018 and granting of visa grant notice dated 28 June 2017(Subclass 485).

    ·Employment Contract 27 February 2018

    ·Various bank statements July 2017 to December 2017, July 2018 to December 2018, January 2019 to June 2019 and May 2020 to July 2020.

    ·Numerous screen shots of text messages

    ·Legal correspondence dated 23 July 2020 and response undated

    ·Motor claim Allianz Insurance

    ·Department of Home Affairs Invitation to comment dated 30 September 2019 and Decision record dated 31 October 2019

    ·Photographs

    ·Email dated 3 March 2021

    ·Correspondence to Fair Work Ombudsman re: complaint dated 6 November 2020

    ·Receipt Western NSW Local Health District 12 June 2020

    ·Medical Certificate darted 10 July 2020

    ·Certificates of attainment/attendance

    ·PTE Academic Report

    ·Copy of Passport insert

14. The Tribunal notes that numerous evidence was lodged by the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

15. Mr Ashish Sharma appeared before the Tribunal via telephone on 24 March 2021 to give evidence and present arguments.

16. The Tribunal exercised its discretion to hold the interview by telephone. The interview was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold an interview by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the interview was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

19. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

20. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·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 reg 1.13A and reg 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.

21. At the hearing of 24 March 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.187.233, the applicant must be subject of an approved nomination.

22. Mr Sharma told the Tribunal that he had been subject to visa fraud and that the nominating employer (the nominator) had sought numerous payments from him to sponsor him for a subclass 187 visa, of which the applicant had paid. The applicant told the Tribunal that the nominator told him that the money was to be invested in a new restaurant in Dubbo where the applicant would work. The money would be regarded as a loan and would be repaid to the applicant. Unfortunately, when the applicant relocated to Dubbo, the proposed restaurant was closed and the applicant commenced employment with the nominator at another establishment where he claims he was subject to harassment, underpaid and did not receive entitlements including superannuation. When the applicant demanded his money back and told the nominator that he would be lodging a complaint, the nominator then withdrew their review application with the Tribunal. 

23. The Tribunal acknowledges the dismay of the applicant and has empathy for his circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant throughout the hearing, the Tribunal must apply the relevant law. 

24. The Tribunal noted that the applicant in his hearing response form had nominated two witnesses (officers of the Fair Work Ombudsman and Department of Home Affairs). It was established at the hearing that the applicant had not sought their approval or availability to appear before the Tribunal, to provide evidence on his behalf. The Tribunal sought clarification from the applicant as to the relevance of evidence they may provide in so far as whether the applicant is subject to an approved nomination. The applicant told the Tribunal that the witnesses would be able to confirm he had lodged a complaint about the nominator. The Tribunal notes and accepts the applicant’s written evidence supporting the lodgement of a complaint with the Fair Work Ombudsman and the Department and therefore considered it was not necessary to contact the said witnesses. The applicant concurred that the Tribunal was not required to contact the witnesses.    

25. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

26. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

27. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    decision

28. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Karen McNamara
    Member

    
    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.