Sharma (Migration) - [2020] AATA 4795

Sharma (Migration) [2020] AATA 4795 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ashwani Sharma
Mrs Harpreet
CASE NUMBER:  1833562
HOME AFFAIRS REFERENCE(S):          BCC2017/5020126
MEMBER:Alison Mercer
DATE:27 October 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 27 October 2020 at 11:20am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Baker – subject of an approved nomination – no discretion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
CASES
Kaur (Migration) (2018) AATA 4539
Singh v MIBP [2017] FCAFC 105
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 31 December 2017. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
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.
In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Baker.
The delegate refused to grant the visas because he found that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the Department refused to approve the nomination of the applicant by his employer, Pizza@Home Pty Ltd, on 28 September 2018. The delegate found that the applicant therefore did not meet cl.186.223 as a whole. The delegate also refused to grant the second named applicant (the wife of the applicant) a subclass 186 visa, as he found that she was not the member of the family unit of a person who held a subclass 186 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal received a review application from the applicants on 15 November 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Timea Pocze-Graf, as their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharma (Migration)

Details

AGLC: Sharma (Migration) [2020] AATA 4795
Case: [2020] AATA 4795
Decision Date: 27 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Sharma against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Subclass 186 Employer Nomination Scheme visa application, specifically under the Temporary Residence Transition stream. The applicant's original nomination was made by Pizza @ Home Pty Ltd, which was subsequently de-registered. The applicant's migration agent mistakenly believed that an associated entity, Berver Pty Ltd, could sponsor the applicant without a new nomination, leading to a fundamental error in the application process.

The primary legal issue before the Tribunal was whether the applicant's visa application met the requirements of clause 186.223 of the Migration Regulations 1994, which mandates that the position to which the application relates must be the subject of an approved nomination that has not been withdrawn. The Tribunal also considered whether the applicant's circumstances, including the errors made by his migration agent and the de-registration of the original nominator, constituted exceptional circumstances that might warrant a different outcome, drawing parallels with the case of *Kaur (Migration)*.

The Tribunal reasoned that the applicant was not the subject of an approved nomination as required by clause 186.223. It was established that the original nomination by Pizza @ Home Pty Ltd was refused, and a subsequent nomination by a different entity, Berver Pty Ltd, could not satisfy the criterion because it was not the nomination in relation to which the applicant made the declaration in his visa application. The Tribunal distinguished the applicant's situation from *Kaur (Migration)*, finding that the core requirement of an approved nomination for the specific position was not met, and that a new nomination by a different employer, even for the same position, would not rectify this fundamental flaw.

The Tribunal concluded that the decision under review should be affirmed. Consequently, the applicant's appeal was dismissed, and the refusal of his Subclass 186 visa application was upheld.

Orders

Orders of the court

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Background

Background to the litigation

On 18 August 2020, the Tribunal received further legal submissions from the applicants’ agent, as follows:Background: The Nominator Pizza @ Home - it is noted that Strike off action in progress and de-registration on 6 September 2018. The Migration Agent advised the department responding to the Procedural Fairness letter that for simply practical reasons why Pizza @ Home Pty Ltd was closed and de-registered but that there had been a change and that the nominee was now working with the same employer and in the same position and same salary. The Migration Agent presented to the department that Berver Pty Ltd is an associated entity of Pizza @ Home Pty Ltd and the nominee is now currently employed with Berver Pty Ltd. Clearly, the Migration Agent misunderstood that Pizza @ Home Pty Ltd and Berver Pty Ltd were two separate entities. This was a fundamental error or misunderstanding on the part of the Migration Agent. The department was correct in stating -·The associated entity needs to apply for and gain approval as a standard business sponsor in their own right to sponsor the nominee and identify the nominee in a new 457 nomination application before applying the TRT stream. ·The department said that the transfer of employment of nominee to an associated entity in itself will not meet the requirement of this nomination application lodged by Pizza @ Home Pty Ltd.The department was correct in stating -·The associated entity needs to apply for and gain approval as a standard business sponsor in their own right to sponsor the nominee and identify the nominee in a new 457 nomination application before applying the TRT stream. ·The department said that the transfer of employment of nominee to an associated entity in itself will not meet the requirement of this nomination application lodged by Pizza @ Home Pty Ltd. The department is correct to say that at the time, the nominator Pizza @ Home Pty Ltd was deregistered (6 September 2018). Therefore, the nominating business was unable to demonstrate to be actively and lawfully operating in Australia. The applicant was not advised by the Migration Agent that Berver Pty Ltd has to do a new nomination. Circumstances beyond applicant's control:1) The applicant's sponsor used a Migration Agent to lodge the nomination;2)The Migration Agent had made an error in that she suggested that a transfer of employment was in line given Brever Pty Ltd was an associated company of Pizza @ Home Pty Ltd.3) The applicant was not advised that a new nomination was necessary.4)The applicant like many other employees of Pizza @ Home Pty Ltd formed the opinion that they were employed with the same employer at the same premises and same entitlements. The were told by the employer Pizza @ Home Pty Ltd that there was an internal restructuring.5)An employee generally relies on his employer - when an employee is told by an employer that he is now with an associated company, at the same place of operation , having the same supervisors, having the same entitlements, the employee accepts that as his position is safe and same as before.6)The applicant did not realise he had to firstly get a new sponsor and secondly lodge a new nomination.In Kaur (Migration) (2018) AATA 4539 (Kaur), the Department granted a 457 visa to the applicant on 13 July 2015 which was valid until 13 July 2019, based on an approved nomination of the applicant as a Cook. It was a condition of the applicant's visa that if her employment comes to an end, she need to get a new approved nomination by an approved sponsor, no more than 90 consecutive days from the date her employment ends. The Department was advised that the employee no longer works for them. The applicant advised the Department that the employer sold his business and the new owners were not prepared to continue with her sponsorship. In this case, the AAT found that it had a discretion not to cancel the visa, although the applicant had breached the visa condition because she had ceased employment for more than 90 days. The AAT in this case accepted that:a)the applicant had established life in Australia and have been here for some 10 years;b)the circumstances that led to the cancellation of her visa were not in her control;c)she did try in finding new employment and sponsorship/nomination in her nominated occupation.d)AAT gave weight to the fact that the employment was in regional Victoria; (skill shortages there).Considering the circumstances in Kaur's case, the Tribunal decided that the visa should not be cancelled and set aside the decision of the Department. It is submitted that: ·In the applicant's case, the new Employers Bever Pty Ltd, although associated to Pizza @ Home Pty Ltd, having the same Directors, owners, occupying the same premises and having the same entitlements, refused to sponsor the applicant. ·Mr Sharma needs time to arrange with his sponsor/nominator to lodge a new application. He has had discussions with a few sponsors who are ready to sponsor and nominate him. ·Mr Sharma has established his life in Australia with his wife and baby who is 20 months old. Mr Sharma has been here in Australia for 11 years. ·The circumstances that led to the cancellation of his nomination was beyond his control. ·Mr Sharma has applied for new jobs in the same line. He has a few employers interested in sponsoring and nominating him. However, with the Covid 19 situation things are on hold. It is submitted that following Kaur, the Tribunal should exercise its discretion, in light of the circumstances and grant the applicant time to approach a new sponsor/nominator to be able to lodge an application in his nominated occupation and make such orders as it thinks fit. Attached find the summary of Kaur's case for your easy reference.Kaur (Migration) [2018] AATA 4539 Tribunal: Member Alison Mercer The Department of Immigration and Border Protection (the Department) cancelled the applicant's Subclass 457 visa on 12 January 2017. The applicant applied to the AAT for a review of the Department's decision. The AAT set aside the decision on 5 October 2018. The Department originally granted a visa to the applicant on 13 July 2015, valid until 13 July 2019, based on the approved nomination of her for the occupation of cook, made by the sponsor Happy Point Investment Pty Ltd. A condition of the applicant's visa was that if her employment ends, she must go no more than 90 consecutive days without a new approved nomination by an approved sponsor.[1] The Department received notification from Happy Point Investment Pty Ltd that the applicant no longer worked for them. The Department asked the applicant to respond to this notification and the alleged breach of a condition of the visa. The applicant explained that she lost her job through no fault of her own because the owner of the business sold it and the new owners were not prepared to continue with her sponsorship. The applicant said that she was aware of the 90 day period and searched for employment, eventually finding work as a cook with Two Leos Pty Ltd, who lodged an application with the Department for approval as a standard business sponsor and a nomination of the applicant as a cook. Two Leos Pty Ltd was approved as a standard business sponsor but the nomination was refused. The business lodged a second nomination with the Department.The Department considered the applicant's response but decided to cancel the visa. The Department acknowledged that a nomination by her new employer was yet to be decided but gave greater significance to the fact that more than 13 months had passed since the applicant's original employment ended. The applicant applied to the AAT for a review of the decision and appeared before the AAT to give evidence. Her circumstances had significantly changed since the Department's decision. The second nomination submitted by Two Leo's Pty Ltd was refused and she now had a new job as a cook with Wah ring's Restaurant Pty Ltd (Wahring's). Wahring's had lodged an application for approval as a standard business sponsor and a new nomination for the applicant as a cook. Both were still pending at the time of the AA T's decision. Although the AAT found that the applicant had breached the visa condition because she ceased employment for more than 90 days, it could still exercise a discretion it had to not cancel the visa. It is not mandatory to cancel a visa once the condition of the visa has been breached so the AAT had to then weigh up the reasons for and against cancelling the visa.[2] The applicant argued there were compelling reasons to remain in Australia. This included her current ongoing employment with an employer who strongly supported her employment. The applicant's employer strongly supported this when they appeared before the AAT. The applicant also argued that she and her family would struggle to re-establish themselves in India, and that they would be affected financially and emotionally if they had to leave, given they had lived in Australia for approximately ten years. The applicant and her husband expressed particular concern about the effect on their son, who was born in Australia and had spent most of his life here, including commencing primary school.The AAT accepted that the applicant had established a life in Australia, that the circumstances that led to the cancellation of her visa were not within her control and that she did try (and initially succeeded) in finding new employment and sponsorship/nomination in her originally nominated occupation. The AAT gave significant weight to the fact that the employment was in regional Victoria where there were documented skills shortages and the purpose of the subclass 457 visa which was to enable Australian employers to fill those skills shortages. Moreover, the Tribunal found that her current employer wished to retain the applicant's services, and had now successfully nominated her as an approved standard business sponsor, and that the occupation of Cook remained on the Department's Short Term Skilled Occupation List. Considering the circumstances as a whole the Tribunal decided that the visa should not be cancelled and set aside the Department's decision Read the full written decision (httP-:// bin/viewdoc/au/cases/cth/AATA/2018/4539.html). in Austlll. [1] Condition 8107(3)(b) of schedule 8 reg/mr1994227 /sch8.html). to the Migration Regulations 1994[il The AAT had regard to the relevant circumstances including but not limited to matters identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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. 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. It is not disputed that in this case, Pizza@Home Pty Ltd lodged a nomination of the applicant in 2017, but it was refused by the Department on 28 September 2018. As noted in the Tribunal’s s.359A letter, a review application was lodged by that employer with the Tribunal but the Tribunal made a decision on 4 February 2020 that it had no jurisdiction to review the Department’s nomination refusal decision. The Tribunal therefore finds that the applicant is not the subject of an approved nomination by Pizza@Home Pty Ltd. It is a requirement for the Temporary Resident Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018). This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4] [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88]. [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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