Sohi (Migration)

[2018] AATA 5388

Sohi (Migration) [2018] AATA 5388 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Simranjeet Singh Sohi
Mrs Manpreet Kaur Sidhu
Miss Tegh Kaur Sohi

CASE NUMBER:  1803918

HOME AFFAIRS REFERENCE(S):           BCC2016/4186395

MEMBER:Alison Mercer

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2018 at 6:01pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Motor Mechanic – nomination application approved – availability of nominated position to the applicant – subject of a Notification to Wind Up a Company – 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 Home Affairs on 24 January 2018 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 12 December 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 of Motor Mechanic.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations. The delegate noted that cl.186.223(4) required that the nominated position was still available to the applicant. The delegate found that the applicant had been nominated as a Motor Mechanic by Montague Body Repairs Pty Ltd, whose nomination of him was approved by the Department on 25 May 2017. The delegate noted, however, that checks conducted by it on 23 June 2017 indicated that the company was the subject of a Notification to Wind Up a Company by the Australian Securities and Investments Commission (ASIC) on 15 June 2017. A letter was sent to the applicant advising him of this and inviting him to comment. On 5 July 2017, the applicant’s agent provided a response stating that the owner of the company had advised that it was solvent, fully operational and trading. Documentary evidence, in the form of letters from the company’s accountant and a director, an ASIC invoice, payment receipts and Business Activity Statements (BAS) were also provided. The delegate noted that an ASIC search indicated that the following notifications were lodged with ASIC:

   ·24 August 2017 – Notice of Disclaimer of Onerous Property (form 525);

   ·20 September 2017 – Report as to Affairs Regarding Court Winding Up (form 507C);

   ·19 October 2017 – Statutory Report from Liquidator S70-40 of Insolvency (form 5601); and

   ·22 January 2018 – Presentation of Accounts and Statement Accounts of Winding Up (form 524E).

6. The delegate further noted that a Google search of the company indicated that the business was ‘Permanently Closed.’ The delegate sent a further letter to the applicant inviting him to comment on this information but received no response. Accordingly, the delegate concluded that the nominated position was no longer available to the applicant, as a result of which cl.186.223(4) was not met.  This meant that the applicant did not satisfy cl.186.223 as a whole and could not be granted a subclass 186 visa in the TRT stream. The delegate further found that the applicant did not meet the nomination criteria for either of the other streams within subclass 186.  Finally, the delegate refused to grant the second and third named applicants (the applicant’s wife and child) subclass 186 visas as they did not meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 14 February 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Edward Francis, as their representative and authorised recipient for correspondence.

8. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments.  His agent did not attend the hearing.

9. The applicant told him that he was told by the owner of Montague Body Repairs Pty Ltd that the company had gone into external administration for a period due to issues with the Australian Taxation Office (ATO). He said that the owner is his boss, James Filios, who has been very sick and is no longer in Melbourne. The applicant said that he communicates with his boss by telephone, and maintained that he had been working continuously in the business as a Motor Mechanic since he was originally employed to date (apart from 2 weeks off when his daughter was born). The Tribunal noted that it had no documentary evidence to indicate that this was the case, although it acknowledged that the applicant had provided the following documents to the Tribunal at the commencement of the hearing:

   ·Australian Business Name (ABN) print out, accessed 16 July 2018, indicating that the name Montague Body Repairs Pty Ltd is currently registered.

10. The Tribunal discussed with the applicant the need for him to show current, objective, documentary evidence of his ongoing employment. The applicant indicated that he was paid in cash but thought that he could provide his PAYG summary statement for the previous financial year (he noted that he had not received the one for the most recent financial year), payslips and his tax return. The Tribunal agreed to defer its decision until 31 July 2018 to enable the applicant to provide additional material to substantiate that the position was still available to him and that he was in fact employed there.

11. On 31 July 2018, the Tribunal received the following documents via email from the applicant:

    ·PAYG payment summary for him for 2014/15 issued by Montague Body Repairs Pty Ltd;

    ·PAYG payment summary for him for the 2015/16 financial year issued by the ATO showing his gross salary as $54,000;

    ·fortnightly payroll advice slips in the applicant’s name headed ‘Montague Body Repairs Pty Ltd’ for the period 1 July 2016 to 17 November 2016.

12. The applicant stated that he had not yet received his PAYG payment summary for 2017/18.

13. On 1 October 2018, the Tribunal wrote to the applicant to advise that the material provided to it was insufficient to be satisfied that the applicant was still employed by Montague Body Repairs Pty Ltd and/or that the nominated position there was still available to him. The Tribunal requested that he provide any updated information to demonstrate that the position was still available to him, such as his 2017/18 PAYG summary statement and/or a statutory declaration from his employer (accompanied by photographic identification of the employer) certifying that the applicant continued to be employed by Montague Body Repairs Pty Ltd. The Tribunal requested that the applicant provide any further information by 12 October 2018.

14. The Tribunal did not receive any further information or documents from the applicant by 12 October 2018, nor has it received any further communication from him to date. The Tribunal is satisfied that its request letter of 1 October 2018 was sent to the applicant’s nominated email address for correspondence and there is no evidence in the Tribunal’s electronic records that it was unable to be delivered or was not delivered.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

16. 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.

17. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn (cl.186.223(1), (2) and (3));

    ·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 (cl.186.223(3A));

    ·the position is still available to the applicant (cl.186.223(4)); and

    ·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).

18. The Tribunal is satisfied that the nomination of the applicant by Montague Body Repairs Pty Ltd was approved by the Department on 25 May 2017 and there is no evidence that it has been withdrawn.

19. However, the Tribunal is not satisfied that the position is still available to the applicant, as required by cl.186.223(4). The Tribunal gives weight to the documentary evidence indicating that the applicant’s employer was subject to winding up action by ASIC from September 2017 to January 2018, and the applicant’s evidence that his former boss Mr Filios was seriously ill and no longer working in the business. This strongly suggests to the Tribunal that the nominated position is no longer available to the applicant.

20. On the other hand, the Tribunal notes the applicant’s assertion at the hearing that he has been continuously employed there, is currently employed there, and that he is generally paid in cash. He also provided a current ABN registration record for Montague Body Repairs Pty Ltd, as of July 2018, and advised the Tribunal that he had not yet received his 2017/18 PAYG summary statement.

21. While the Tribunal acknowledges the difficulties faced by the applicant when the provision of some of the documents related to his employment is contingent on third parties, it gives weight to the fact that up to the financial year 2015/16, the applicant was able to provide documentation related to his employment by Montague Body Repairs Pty Ltd, but has been unable to do so for the financial years 2016/17 or 2017/18. While the Tribunal accepts that the applicant cannot generate his own PAYG summary statements, he has not provided any other evidence that supports his claim that his employment is ongoing and that the position is still available to him. In particular, he has not provided any evidence from his employer confirming he is still employed in the nominated position, nor any evidence that he is being paid for employment in that position.

22. Having considered the above evidence carefully, the Tribunal is not satisfied that the nominated position is still available to the applicant. It therefore finds that he does not meet cl.186.223(4) and thus cannot meet cl.186.223 as a whole.

23. 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.

24. The Tribunal must also affirm the decision to refuse to grant a subclass 186 visa to the second named and third named applicants, as it finds that they cannot meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    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.