Thaker (Migration)

[2021] AATA 2640

Thaker (Migration) [2021] AATA 2640 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hetul Rajendraprasad Thaker
Mrs Divyaben Hetul Thaker
Master Param Thaker

CASE NUMBER:  1818865

HOME AFFAIRS REFERENCE(S):          BCC2017/2311701

MEMBER:Phoebe Dunn

DATE:2 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 02 July 2021 at 4:55pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – no approved nomination – sponsoring business ceased operating – applicant’s wife’s successful business employing Australian residents – applicant’s son granted Australian citizenship – impact of the COVID-19 pandemic – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 65, 351, 359
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; r 1.13

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 22 June 2018 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 29 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 (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 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the related nomination application by Kamicon Pty Ltd ATF the Yap Family Trust (the nominator), being the nomination referred to in cl 186.223(1) of Schedule 2 to the Regulations (the nomination), was refused by a delegate of the Minister on 24 May 2018 and as such there was no approved nomination.

6. The nominator applied for review of the decision to refuse the nomination. The applicant appeared as a witness for the nominator in the hearing of the nomination review.  On 28 April 2021, the Tribunal affirmed the decision of the delegate on review.

7. By letter dated 29 April 2021, the Tribunal wrote to the applicants in accordance with the requirements of s 359A of the Act, inviting the applicants to comment on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decisions under review.  The Tribunal provided particulars of the information, being that the decision to refuse the related nomination had been affirmed by the Tribunal on review, and explained the relevance of the information, being that it is a requirement for the grant of the Subclass 186 visa that the related nomination has been approved.  The Tribunal explained the consequence of the Tribunal relying on that information in reaching its decision is that the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination and that the applicant does not satisfy a requirement for the grant of the visa, being the requirement that the related nomination has been approved and that this would be the reason or part of the reason for affirming the decision under review. The Tribunal invited the applicants to comment on or respond to this information by 13 May 2021.  The applicant responded on 12 May 2021 and requested an opportunity to appear before the Tribunal in person.

8. The Tribunal invited the applicants to a hearing in person on 7 June 2021. Due to the COVID-19 pandemic and a lockdown in Melbourne, Victoria, the applicants were invited to attend a video hearing on the same date and time.  The applicants again requested that the hearing be conducted in person and the hearing was rescheduled to 15 June 2021.

9. The applicants appeared before the Tribunal on 15 June 2021 to give evidence and present arguments. The Tribunal took oral evidence from the first named applicant Mr Hetul Rajendraprasad Thaker and the second named applicant Mrs Divyaben Hetul Thaker.

10. The applicants were represented in relation to the review by their registered migration agent, Dr Isha Mehta.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is an approved nomination.

13. At the hearing of this matter, Mr Thaker and Mrs Thaker gave detailed oral evidence regarding their circumstances.  Mr Thaker stated that he understood that the nomination had not been approved and that this was because the business had not been operating. He stated that after the Department refused the nomination, the nominator decided that he was too old and had too many personal issues with his son’s health that he did not have the time to focus on the business. As such he decided to close the business where Mr Thaker was working and promised that he would open a new business to assist Mr Thaker with his visa, but this never eventuated.

14. Mr Thaker stated that he was seeking the assistance of the Tribunal to enable him to apply for a new Subclass 491 visa.  He stated that he had submitted an expression of interest application to the State government sponsored visa scheme in October 2020, but that was yet to be considered because at that stage applications were not open.  He stated that he had recently (approximately six weeks ago) started working as a full-time Chef for a new employer, Scully’s Oyster Bar and Grill in Queenscliff, regional Victoria, and they were interested in sponsoring him, but he was not able to lodge a new application because of s 48 of the Act.  He also noted that he could not travel to lodge a new application off-shore due to the current travel restrictions due to the COVID-19 pandemic.  He stated that prior to this he had been working as a full time Cook in a café in North Melbourne and had worked there initially part-time and then full time for approximately one year from August 2018.

15. Mr and Mrs Thaker gave evidence that in late 2019 they went to Canada and spent three and a half months there.  They stated that they were all permanent residents of Canada and that their second child was born in Canada on 1 January 2020 and was a Canadian citizen and that their eldest son was born in Australia and had recently received his Australian citizenship.  Mr Thaker said that he returned to Melbourne with his eldest son on 24 January 2020 to start the new school year in Australia, but that his wife stayed in Canada with their newborn, arriving back in Melbourne on 13 March 2020.

16. Mrs Thaker gave evidence that she owns and operates a successful grocery and importing business; India Supermarket Pty Ltd, with two premises, one in Point Cook and one in Footscray which she established in 2015.  She stated that she has five staff working for her in the business, including one driver, one of whom is an Australian citizen or permanent resident.  She stated that the business is very profitable with an annual turnover of $1.5 to $2 million and expenditure on wages of between $150,000 to $200,000 per annum. She stated that the business has grown significantly and she does not feel that she could leave the business.  She stated that their strong desire is to live in Australia because of their deep connections to the Australian community, particularly her son’s connection, and because of her successful business.  She stated that it is not possible for them to leave Australia to reapply and return due to the current travel restrictions, the uncertainty of their situation and because she can’t leave the business. She stated that she applied for Canadian permanent residency in 2012 on the basis of her nursing qualifications after Mr Thaker was rejected for a student visa. She stated that they have the opportunity to live in Canada as their permanent residency visas were granted in 2019, but because of her business and her son, their first preference is Australia.

17. Mr Thaker stated that during the extended lockdown in Melbourne he was unable to find any work, but that they had survived from the proceeds of Mrs Thaker’s business.  He stated that they have the money to support themselves while they wait for the outcome of future applications.  He stated that he was successful in obtaining skills assessment and noted that Chefs/Cooks had recently been added to the State nomination list and that he was hoping that his expression of interest would be processed soon. 

18. Mr and Mrs Thaker noted that their eldest son was born here and had lived in Australia his entire life and is currently in Grade 5 at school and was very proud to be made an Australian citizen and have an Australian passport.  They said that he did not like Canada and wasn’t happy there, he only wants to live in Australia. They said that it would be very traumatic for him if they were not allowed to stay.  They stated that they understand that the visa can’t be approved because of the nomination being affirmed but that they were urging the Tribunal to consider their situation so they could lodge a new application onshore. 

19. In closing submissions, the applicant’s representative stated that they had come to Australia in 2009 and spent a significant length of time in Australia and considered it their home. He stated that Mr Thaker had worked hard and had a positive skills assessment on the basis of five years full time work as a Cook. He stated that they were hoping for the Tribunal’s assistance so they can find an alternative pathway to obtain a new visa, such as a Subclass 491 visa, noting that it was not currently possible to go offshore to lodge a new application due to the global pandemic. He noted Mrs Thaker’s business and that the children, in particular, would be significantly impacted as Australia is their home.

20. The Tribunal noted that it understood the circumstances were difficult but that it did not have discretion in relation to the requirement in cl 186.223(2) that the related nomination be approved. The Tribunal reiterated that this was a question of fact in respect of which the Tribunal had no discretion; there was either an approved nomination or there was not. The Tribunal noted that in this case the nomination had been refused at first instance and that this decision had been affirmed on review by the Tribunal and this meant that there was no approved nomination. The Tribunal stated that it had heard the applicants’ evidence regarding their circumstances and noted the Ministerial Intervention powers in s 351 of the Act. The Tribunal allowed the applicant 14 days post-hearing to make submissions addressing the Ministerial Intervention discretion.

    Nomination of a position

21. 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.

22. 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 of the Regulations); 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.

23. The applicant applied for the Subclass 186 visa on the basis of the nomination by the nominator nominating him to work in the nominated position of Cook.  The applicant’s Subclass 186 visa was refused because the related nomination had been refused and as such the applicant did not meet cl 186.223(2) as there was no approved nomination.

24. The nominator applied for review of the decision to refuse the nomination.  On 28 April 2021, the Tribunal affirmed the decision on review.  This means that the related nomination has not been approved and there is no longer a pending review of a decision to refuse the nomination before this Tribunal.

25. The Tribunal has carefully considered the applicant’s oral submissions but notes the requirement in cl 186.223(2) that there be an approved nomination is a question of fact.  As such, notwithstanding any sympathy for the applicants, the Tribunal has no discretion in respect of this requirement.  In this case the related nomination was refused at first instance and this decision was affirmed on review.  As the related nomination has not been approved and there is no longer a pending review of a decision in relation to the nomination before the Tribunal, the applicant does not meet the requirement in cl 186.223(2).  As such, after careful consideration of the information before it, including written submissions and supporting documentation on the Departmental and Tribunal file and oral evidence at the hearing, the Tribunal finds that cl 186.233(2) is not met.

26. Therefore, cl 186.223 is not met.

27. 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.

28. The only basis for the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl 186.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl 186.311.

    Ministerial Intervention

29. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s 351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s 351 of the Act.

30. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s 351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

31. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s 351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The circumstances which may be unique or exceptional in this case include, relevantly:

    a.strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident (Ground One); and

    b.circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added) (Ground Two).

32. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

33. The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.

34. Following the hearing, the applicants have provided a significant volume of information to support a request for Ministerial Intervention, which the Tribunal has considered. This includes the following:

    a.Submission dated 29 June 2021, providing background to the applicants current circumstances and making the following key points:

    i.The applicant has abided with all visa conditions and will do so in the future;

    ii.The applicant is subject to a s 48 bar and can’t travel overseas to lodge a new visa due to COVID-19 border closures;

    iii.The current circumstances are putting the family under stress;

    iv.Mrs Thaker runs a successful grocery store and wholesale food items business, with a turnover of $1.4 million in the last financial year and four full-time staff;

    v.The applicants all have Canadian permanent residency;

    vi.Their eldest son is an Australian citizen, their other son is a Canadian citizen;

    vii.The eldest son considers Australia his home and does not want to live in India or Canada;

    viii.The applicant is a qualified and skilled worker with over five years of experience as a Cook. He is currently employed at Oyster Grill and Bar and the employer wants to nominate him for a visa;

    ix.Mrs Thaker’s business and their eldest son’s education will be impacted if they are required to leave the country;

    x.It is unfair that the applicants will suffer through no direct fault of their own; and

    xi.The circumstances faced by the applicants are ‘exceptional, compelling and consistent’, justifying Ministerial Intervention to allow the applicant to lodge a substantive visa onshore;

    b.Activity statement for India Supermarket Pty Ltd for the period from 28 June 2019 to 28 June 2021;

    c.Business activity statement (BAS) for the periods from October 2019 to December 2019, January 2020 to March 2020, April 2020 to June 2020, July 2020 to September 2020, October 2020 to December 2020, January 2021 to March 2021;

    d.Business tax return for India Supermarket Pty Ltd for financial year (FY) 2020, showing income of $1,479,829 and a profit of $12,777;

    e.Letter dated 28 June 2021 from Astra Consulting, Accountants and Business Advisers, accountants for India Supermarket Pty Ltd, verifying the financial capacity and gross expenditure on wages and salaries as follows:

    i.The business has been actively operating since 19 July 2011;

    ii.The annual revenue from 1 July 2019 to 30 June 2020 was $1,461,397, with gross expenditure on wages (including superannuation) for the period being $79,038;

    iii.The annual turnover of the business from 1 July 2020 to 31 March 2021 is $1,038,650 and the gross expenditure on wages and salaries (including superannuation) for the period is recorded as $109,493; and

    iv.The company has strong financial viability to operate a successful business in Australia;

    f.Various photographs of India Supermarket Pty Ltd;

    g.Australian citizenship certificate of Master Param Thaker, acquired 17 April 2021;

    h.Canadian permanent residency cards for Mr Hetul Thaker and Mrs Divyaben Thaker;

    i.Canadian birth certificate of Shriyan Thaker;

    j.Canadian passport of Shriyan Thaker;

    k.Handwritten letter to the Tribunal from Master Param Thaker, requesting that his parents and little brother be allowed to lodge permanent pathway visa applications onshore. Master Param notes that their current circumstances do not permit them to lodge new applications onshore and if they were to leave Australia they would not currently be permitted to return and it would mean that he would also have to leave the country for an indefinite period, which will impact on his future and his studies. He states that he is currently preparing himself for a selective school program for next year and his studies and future goals will be impacted more than anyone else. He notes that in 2020 he missed so much school time as a result of the extensive lockdown in Victoria and this is part of the reason he is so concerned about his future and his studies and requests that his parents be allowed to apply for new visas onshore;

    l.Letter dated 19 April 2021 from the Administration Officer at Truganina College confirming Master Param Thaker’s enrolment from 23 July 2018;

    m.Truganina College P-9 Semester One 2021 Student Report for Param Thaker (Year 5);

    n.Employment agreement for Scully’s Oyster Bar and Grill in Queenscliff dated 16 June 2021 providing for full-time employment in the position of Chef for at least two years at an annual base salary of $56,000 plus superannuation;

    o.India Supermarket Pty Ltd Organisation Chart, showing six employees (two sales personnel, three register personnel and one delivery/receiving person), plus Mrs Thaker as Managing Director/CEO;

    p.H2U Importers Pty Ltd Organisation Chart listing Mrs Thaker and the CEO/Director with another Director, one sales executive, two marketing personnel, one SEO marketing personnel, one warehouse manager and one delivery/dispatch manager; and

    q.Mr Thaker’s weekly payslips for May and June 2021 showing take home salary of $888.92 per week.

1. Having considered the supporting information, the Tribunal is of the view that the applicants’ circumstances warrant a referral to the Minister.

2. In relation to Ground One, the Tribunal notes that the applicant has two children, a 10-year-old son who was born in Australia and is an Australian citizen and an 18-month-old son who was born in Canada and is a Canadian citizen.  The applicant has provided supporting evidence relating to the Australian citizen son, Master Param Thaker, including school records and enrolment details, which demonstrate he is thriving and settled in the Australian community. Master Param Thaker (the third named applicant) has written a letter describing his experiences in Australia, his desire to remain in Australia to continue his studies and support his future as an Australian citizen and his concern over the impact to himself and his family if they were required to leave Australia. The applicants have given oral and written evidence of the impact on their son, an Australian citizen, if they were required to leave Australia.

3. The Tribunal notes that one of the applicant’s family members is an Australian citizen, namely the third named applicant. The Tribunal has noted and considered the letter from the third named applicant outlining the impact to his future, his studies and his health and wellbeing generally if his family were required to leave Australia.  The Tribunal has also noted oral evidence at the hearing that Master Thaker is a committed and proud Australian citizen who did not enjoy being in Canada and does not want to live there and has never lived in India.  The Tribunal notes that the applicants are not requesting that substantive visas be granted to the non-citizen applicants, simply that they be permitted to remain in Australia while they apply for new visas, rather than go offshore to do so, to facilitate the continuation of their Australian citizen son’s studies in Australia  The Tribunal acknowledges that, given his age, Master Thaker would have no choice but to follow his family if they were required to leave Australia and accepts that this would likely cause Master Thaker considerable anguish and hardship.

4. The Tribunal has also considered the applicants’ evidence that the people employed in Mrs Thaker’s business would be impacted if the business was required to close for an indefinite period.  The Tribunal notes and accepts that these employees would, no doubt, be impacted.  However, the Tribunal does not consider it has sufficient evidence before it of their citizenship status or personal circumstances to determine whether any impact on these employees due to the business being closed would fall within the circumstances contemplated by Ground One.  Nonetheless, the Tribunal considers this adds context and weight to the applicants’ overall claims.   

5. In relation to Ground Two, the Tribunal has considered the applicants submissions that the application of the legislation would lead to unfair or unreasonable results in this particular case, having regard to the applicant’s years of experience as a Cook as demonstrated by his TRA skills assessment and his current employment and the ongoing nature of that employment with a new employer under a contract which is valid for at least two years. The applicant notes that there are currently considerable skills shortages in the hospitality industry, including for Cooks, as a consequence of the COVID-19 pandemic.

6. The Tribunal notes that the first and second named applicants have been in Australia since 2009 and have independent means of income generated from the second named applicant’s business. The applicant has noted his commitment to Australia and his enduring desire for him and his family to obtain permanent residency and continue to contribute to Australian society.  The applicant has noted the hardship experienced by him and his family as a consequence of the visa process and the circumstances resulting in the refusal that were beyond his control.  The applicant has made submissions regarding the refusal of the visa leading to an unfair or unreasonable result in these circumstances.

7. In relation to Ground Two, the applicants have provided evidence of the second named applicant’s established Indian grocery and importing business in Australia, which employs at least five people part-time and generated turnover of around $1.4 to $1.9 million per annum. The applicants have also provided evidence of their capacity to continue to support themselves through this business. The applicants assert that it would lead to unfair or unreasonable results if they were forced to close the business as a consequence of being required to go offshore indefinitely.

8. The Tribunal notes that notwithstanding that at the date of this decision there is a ‘travel bubble’ in place between Australia and New Zealand, it does not appear that this would apply to the applicant. As such, if the non-citizen applicants travelled to New Zealand for the purposes of lodging a new application, under the current border restrictions, it does not appear that they would be able to return, which could also have a deleterious impact on their mental health.

9. The applicants have also made submissions to the effect that they are not seeking permanent visas, just the grant of substantive visas so that they are not forced to put themselves at risk of not being permitted to return if they are required to depart Australia to apply offshore as a consequence of the s 48 bar. The applicants have made submissions regarding their personal circumstances not being anticipated by legislation in the context of the COVID‑19 pandemic, noting that the s 48 bar is impacting on their ability to apply for Subclass 491 visa, which are not being processed when a bar applies. They note that Mr Thaker is already working in a secure contracted position as a holder of a bridging visa and would otherwise have a new nomination and associated visa applications in train, but for his inability to freely travel to lodge offshore applications. The Tribunal considers the impact of the s 48 bar on the applicant’s capacity to lodge a new visa application to constitute unintended consequences of the legislation in the current context of the COVID‑19 pandemic relevant to the consideration of the Ministerial Intervention power in s 351 of the Act.

10. The Tribunal has considered the applicants’ submissions and circumstances 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

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

    Phoebe Dunn
    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.