SINGH (Migration)

[2019] AATA 3166

SINGH (Migration) [2019] AATA 3166 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jagjeet SINGH
Ms Jaswinder KAUR
Miss Japji KAUR

CASE NUMBER:  1723775

HOME AFFAIRS REFERENCE(S):          BCC2016/649923

MEMBER:R. Skaros

DATE:25 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2019 at 9:39am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – availability of nominated position – site visit of business premises – nominating entity deregistered – business no longer in operation – no provision for extenuating circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 20 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 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 (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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position with Jacob’s Crystal Car Wash 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 the delegate was not satisfied that the position was still available to the applicant. The delegate noted that the business was not operating at the business address listed or where the applicant was to be employed.

6. A copy of the delegate’s decision record was provided to the Tribunal with the application for review.

7. The applicants appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The Tribunal also received a substantial amount of information from the applicant regarding his employment with the nominator, including the contract of employment, payslips, superannuation and tax assessment notices. The Tribunal also received work references and payslips relating to his recent employment with the Pizza Pasta Kitchen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nominated position is still available to the applicant.

    Nomination of a position

11. 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 and, relevant to this case, that the position is still available to the applicant.

12. The applicant applied for the visa on the basis of a nomination made by Jacob’s Crystal Car Wash Pty Ltd. The nomination was approved by the Department on 4 February 2016. Information in the decision record, a copy of which was provided to the Tribunal, indicates that on 1 June 2017 Departmental officers conducted a site visit at the nominator’s business premises and found that the business at which the applicant was supposed to be employed was not in operation and that another business, not related to the nominator, was operating from the premises.

13. The decision record indicates that the applicant was invited by letter to comment on the adverse information and that a response was received from the nominator stating that the business had been sold to a different company and that a new café would soon open in another location. The response also detailed the applicant’s experience and employment.

14. On review, information came before the Tribunal indicating that the nominating entity, Jacob’s Crystal Car Wash Pty Ltd, had been deregistered on 22 May 2019. This information indicates that the nominating entity is no longer registered and is not operating any businesses. It was therefore necessary to inform the applicant of this information as it was relevant to the issue of whether the position is still available to him.  

15. At the hearing the Tribunal discussed with the applicant the requirements in cl.186.223 and the evidence before it suggesting that he may not satisfy that requirement.

16. In accordance with the procedure in s.359AA, the Tribunal informed the applicant that information before it indicates that the nominator ceased operating a business and that a recent search conducted by the Tribunal of ASIC’s database indicates that the nominating entity was deregistered on 22 May 2019. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if the Tribunal relied on the information it would go on to find that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet cl.186.223(4) and that in the circumstances the decision under review would be affirmed.

17. When asked if he wished to seek additional time to respond to the information, the applicant requested a short period of time to consider his response to which the Tribunal agreed. After a few minutes the applicant stated that when he arrived on the Subclass 457 visa he was required to work for the same employer for two years to be eligible for permanent residence. He stated that he worked for the nominating employer for a period of about two and a half to three years. He stated that during his employment with the nominator the business started declining, customers were unhappy and they could not operate the Café. He stated that he spoke to the employer about the status of the business but by that time they had already lodged their permanent residence application. He stated that they discussed having a function centre and establishing another business but the cost of doing this was too high ($2.5 million).

18. The Tribunal noted that to meet the requirements for the visa, the nominated position had to still be available to him. The applicant stated that circumstances can change and that when he applied for the visa he had met all the criteria, including the English requirement, qualifications, skills and experience. He stated that the Department took a long time to process their visa application and that had their application been considered within the normal processing time they would have been granted the visas.  

19. The Tribunal acknowledged the applicant’s evidence but explained to him that it was required to determine whether he met the requirements for the visa at the time of its decision. The Tribunal further acknowledged that the circumstance in which the applicants find themselves is not of their own making but noted that there was no provision in the legislation to take into account any extenuating circumstances.

20. The applicant stated that his circumstances should be considered and that the Department should have given him the opportunity to find another sponsor. The Tribunal acknowledged the applicant’s evidence but noted that a new nomination from another sponsor would not assist the applicant in this case as only the nomination made at the time of the visa application could be relied upon to meet the requirements in cl.186.223.

21. The Tribunal has had regard to the evidence before it, however, as explained to the applicant at the hearing, there is no provision in the legislation to take into account the circumstances of the nominator or the applicant. The issue before the Tribunal is whether the nominated position is still available to the applicant. The evidence before the Tribunal, as detailed above, is that the nominator is no longer operating a business and the nominating entity has been deregistered. On the basis of this evidence, the Tribunal finds that the position is not available to the applicant. In the circumstances, the applicant does not meet the requirements in cl.186.223(4). Therefore, cl.186.223 is not met.

22. 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.

23. The secondary applicants applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decisions in respect of the secondary applicants.

    DECISION

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

    R. Skaros
    Senior 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.