Suepsri (Migration)

[2023] AATA 1948

Suepsri (Migration) [2023] AATA 1948 (30 May 2023)

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Parichat Suepsri

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  2201201

HOME AFFAIRS REFERENCE(S):          BCC2019/5797491

MEMBER:Amanda Mendes Da Costa

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

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

The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Act.    

Statement made on 30 May 2023 at 8.55am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – café or restaurant manager – nomination withdrawn by original owner’s son after original owner’s death – genuine position, company financially capable of employing applicant and applicant’s long-term valuable work in role – unwitting victim of dispute within owners’ family – age and migration status – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A

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 13 January 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 November 2019. 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 (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 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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager ANZSCO Code 141111.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

6. The applicant appeared before the Tribunal (via telephone) on 25 May 2023 to give evidence and present arguments.  The Tribunal also heard evidence from Mathew and Palisa Anderson.

7. The Tribunal determined it was reasonable to hold the hearing 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 hearing was not be conducted by video.  The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

8. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal informed the applicant that it would seek submissions from her toward the end of the Tribunal hearing on any matter she considered relevant to the review.

9. The hearing was conducted with the assistance of an interpreter in the Thai and English languages.

10. The applicant was represented in relation to the review, with her representative also participating in the hearing.

11. In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the requirements of cl 186.223 of Schedule 2 of the Regulations.

    Nomination of a position

14. 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.

15. 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 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 application for the visa is made no more than six months after the Minister approved the nomination.

16. During the hearing the Tribunal discussed the following information with the applicant[1]:

    ·On 15 November 2019 CHAT THAI PTY LTD (the nominator) applied to the Department to nominate the applicant for the position of Café or Restaurant manager (ANZSCO 141111).

    ·On 9 December 2021 the nominator withdrew its nomination before the Department made a decision on the application.

    ·This means that the nominator’s application for the nominated position has not been approved.

    [1] The Tribunal notes that this information was also the subject of a letter (dated 27 April 2023) sent to the applicant pursuant to s 359A of the Act.

17. In response, the applicant told the Tribunal that she had been employed by the nominator as a Café or Restaurant Manager from 2010 and 2020.  She resigned her employment after she discovered that the nominator had withdrawn its nomination application.  The applicant explained that she was shocked when she discovered this had occurred because she had been a diligent and hard-working employee. 

18. Mr and Mrs Anderson explained that the nominator’s business was originally operated by Mrs Anderson’s mother (Amy Chanta) but after her mother’s death in March 2021 on the business has been operated by Mrs Anderson’s brother, who made the decision to withdraw the nomination application, despite the business being financially capable of employing the applicant and the nominated position being a genuine one.

19. Mrs Anderson who is also responsible for operating another of the family’s businesses (Chat Thai CBD Pty Ltd) told the Tribunal that she and her brother are currently involved in a dispute about the control of the seven restaurants which form the family business.  This dispute is the subject of legal proceedings which have been fixed for hearing in the Supreme Court of Victoria in October 2023.  Mrs Anderson further explained that her brother had made the decision to withdraw the nomination application for the applicant in order to punish her because they are involved in a dispute about the business.  She said this was a particularly cruel act as the applicant had been such a valuable employee and was not responsible for the sibling dispute.

    Applicant’s submissions

20. The applicant’s submissions may be summarised as follows:

    ·     The applicant was sponsored by the nominator for a subclass 457 visa on 22 February 2017 which was valid until 22 February 2021.

    ·     At that time and subject to the “grandfathering provisions” announced by the Department the applicant was eligible to be considered for permanent residence even though she had attained the age of 45 years on 27 April 2019.  The current application for a subclass 186 visa therefore allowed the applicant to be granted permanent residency, even though she was now over the age of 45 years.

    ·     Until the nomination application was withdrawn, the applicant had been employed by the nominator for many years and her working relationship with the owners and directors of the company was excellent and she was an important part of the organization.

    ·     The applicant was not aware that her employer was proposing to withdraw its nomination application on 9 December 2021 until the application had been lodged with the Department.  Nor was she advised by her former migration agent that she had 28 days in which to respond to the Department’s natural justice letter.  The applicant only discovered the nomination application had been withdrawn was when her former agent rote to advise her on 22 January 2022.

    ·     If Mr and Mrs Anderson had been aware that Mrs Anderson’s bother was proposing to withdraw the nomination application, they would have made alternate arrangements to sponsor her employment in another restaurant.

    Findings

21. Based on the evidence before it, the Tribunal is not satisfied that the applicant is the subject of an approved nomination for the position of Café or Restaurant Manager (her nominated position).

22. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl 186.223.

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 applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

25. The Tribunal accepts that the applicant has been the unwitting victim of a dispute within the family owning and operating the nominator’s business.  The Tribunal is further satisfied that  decision to withdraw the nomination application was not made on the basis of any actions of the applicant and that she devoted approximately 11 years of service in the nominated position where she was regarded as a diligent employee and an integral part of the business operations of the nominator.  The Tribunal further accepts that the applicant’s age now makes her migration status difficult.

26. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

28. The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Act.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.