Sunuwar (Migration)

[2022] AATA 3284

Sunuwar (Migration) [2022] AATA 3284 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shiva Sunuwar
Ms Reshmi Sunuwar Senturi

REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)

CASE NUMBER:  1910661

HOME AFFAIRS REFERENCE(S):          BCC2017/1914482

MEMBER:Stephen Witts

DATE:19 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2022 at 9:32am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – business ceased operation – subject of an approved nomination – 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 8 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 May 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 (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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of cook ANZSCO code 351411.

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

6. The primary applicant, Shiva Sunuwar, appeared before the Tribunal on 24 May 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, Mr Thomas Miu from United King Trading Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of an approved nomination for an employer sponsored scheme 186 visa.

10. The Tribunal has considered all the evidence before it including evidence provided prior to the hearing and evidence given at the hearing.

11. The Tribunal notes that it was provided with a copy of the delegate’s decision dated 8 March 2019 for the nominator provided by the applicant. In that decision the delegate asserted that it was not satisfied that the nominator has demonstrated that it has the financial capacity to be able to pay the full-time salary for the nominated position of cook to the applicant for the next two years. In particular the delegate contended that the company had stated that it will provide the applicant with an annual base salary of $55,500 per annum, that the business was established in 1994, and at the time of decision it employed 4 Australian citizens and 1 foreign employee. It was further asserted that the financial statements provided in the application demonstrated consecutive net liabilities for the 2013 to 2017 financial years and losses for the 2013 to 2016 financial years. It was also asserted that the BAS statements provided indicated nil sales from October 2017 until March 2018 and that there were discrepancies in the sales figures for 2017, and that the nominee was employed in the business with the above base salary in November 2014. It was also contended by the delegate that the training figures provided did not conform to the financial statements for the year 2016 to 2017.

12. The Tribunal notes that submissions were provided by the nominee in this matter. The nominee provided a letter to the Tribunal dated 27 March 2022 stating that he has been in Australia for the last 12 years, that he studied for a certificate in hospitality and that he was sponsored in the business in October 2014, that the restaurant next door experienced a fire and that his restaurant was also affected by fire in the walls and carpet and that it was closed for several months. It was also stated that “one day my boss told me business was not make enough money to cover your application.” It was also stated that his boss told him that the business was closed and that he had retired and that therefore no work was available in this business. It was also stated that he attempted to contact his previous employer but that they did not return his calls.

13. At the hearing the Tribunal had a discussion with the applicant and the nominator regarding the application.

14. The nominator stated that his business closed in 2020 and that the applicant ceased working for him in December 2019. He stated that a lot of things have changed since he made the original application and that the business is no longer operating. He stated that it was very hard in his business for a period of time, that his health was impacted by the pandemic, and that the nominee was an excellent employee and should be allowed to stay in Australia.

15. The applicant stated that he wants to stay in Australia with his family, that his father has died, that he pays taxes, and things have been difficult for his family but that he wants to remain in Australia.

16. The Tribunal has considered the evidence provided very carefully noting that as stated above that the business has not been in operation since 2020 and that the applicant has not been employed in the business since the end of 2019.

17. On that basis after careful consideration the Tribunal finds that the applicant cannot employ the applicant in the nominated occupation of cook in a full-time capacity for at least the next two years in accordance with reg 5.19(3).

18. The Tribunal notes that it gave an opportunity to the applicant under s.359 of the Act to respond to the decision previously made on 4 July 2022 and linked to this matter, 1907165, that is the applicant’s nominator, United King Trading Pty Ltd, and that no substantive submission was received.

19. On that basis the Tribunal finds that the applicant is not the subject of an approved nomination.

    Future employment of the visa holder: reg 5.19(3)(d)

20. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

21. Based on the above the Tribunal finds that the applicant will not be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

22. Given the above findings, the requirement in reg 5.19(3)(d) is not met.

23. Based on the above the Tribunal finds that the applicant is not the subject of an approved nomination.

    Nomination of a position

24. 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.

25. 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 visa application was made no more than six months after the nomination of the position was approved.

26. The Tribunal notes that as above the position is not available to the applicant.

27. Therefore, cl 186.223 is not met.

28. 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.

29. The Tribunal also finds that as the primary applicant did not meet the criteria for the grant of the visa that therefore the secondary applicant also did not meet the requirements for the grant of the visa.

    DECISION

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

    Stephen Witts
    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.