Singh (Migration)

[2020] AATA 3895

Singh (Migration) [2020] AATA 3895 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurbhej Singh

CASE NUMBER:  1816617

HOME AFFAIRS REFERENCE(S):          BCC2017/2083127

MEMBER:Susan Hoffman

DATE:8 September 2020

PLACE OF DECISION:  Perth

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

Statement made on 08 September 2020 at 7:52am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – cook – change of ownership of business – plans to open new restaurant cancelled – position no longer available – nomination refusal affirmed by tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223, 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 24 May 2018, That decision was to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 June 2017. 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 a cook (ANZSCO code 351411).

5. 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)

6. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination application lodged by Harcheema Pty Ltd had been refused by a delegate of the Minister for Immigration and Border Protection.

7. Mr Singh appeared before the Tribunal on 3 September 2020 to give evidence and present arguments. He was not represented in relation to the review

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The main issue in the present case is whether or not the position is still available to the applicant.

   Nomination of a position

10. 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.

11. 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.

12. Mr Singh works at the Viradat Indian Restaurant. He said that he has worked there for about six years and for about five of those six years, he worked for Harcheema Pty Ltd. However, the business changed hands and he continued working for the new owners at the same restaurant. He is now employed by Net Excellence Pty Ltd.

13. Mr Singh said that Harcheema Pty Ltd had planned to open new restaurants but because of Covid-19, that did not happen.

14. The position to which this visa application relates is one referred to in a nomination application made by Harcheema Pty Ltd that identified Mr Singh. Mr Singh no longer works in the position which was the subject of the nomination application whereby Harcheema Pty Ltd was the employer. Based on Mr Singh’s evidence that Harcheema Pty Ltd intended to, but has not opened a new restaurant, the position of cook as nominated by Harcheema Pty Ltd no longer exists.

15. For that reason, the Tribunal finds that the position is no longer available to the applicant.

16. Mr Singh said that he waited a long time for the initial decision to be made by the Department, about one year and seven months, and then waited for about two years for the review by the Tribunal. He said he spoke to the Department and they said he had a bridging visa and could continue working doing the same work at the same restaurant.

17. Mr Singh said, and the Tribunal accepts, that he did the right thing and followed the rules. However, as the position with Harcheema Pty Ltd is no longer available to the applicant, one of the criteria that has to be met for grant of a subclass 186 visa is not met.

18. In addition to that, the Tribunal has reviewed the departmental decision to refuse the nomination made by Harcheema Pty Ltd, and the outcome of that review was to affirm it. There is therefore no approved nomination in relation to Mr Singh’s visa application

19. The Tribunal finds that cl.186.223 is not met.

    CONCLUDING PARAGRAPH

20. 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

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

    Susan Hoffman
    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.