Winter (Migration)

[2021] AATA 269

Winter (Migration) [2021] AATA 269 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh Winter

CASE NUMBER:  1934285

HOME AFFAIRS REFERENCE(S):          BCC2018/1282097

MEMBER:W Frost

DATE:12 February 2021

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 12 February 2021 at 10:28am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – refusal of related nomination application affirmed on review – original employer closed business – applicant’s continuing work in similar position with another employer – new employer’s intention to make new nomination application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 5.19(4)(d)(ii)(D), Schedule 2, cl 187.233(3)

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicant applied for the visa on 17 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant (Applicant) is seeking the visa in the Direct Entry stream to work in the nominated position of Chef (ANZSCO 351311) with ‘Jai Shiv Shakti Noodles Bar & Café Pty Ltd’.

5. In November 2019, the delegate refused to grant the visa because the Applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations in circumstances where the nomination had not been approved.

6. In December 2019, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s refusal decision.

7. On 7 October 2020, the Applicant wrote to the Tribunal relevantly as follows:

   I am writing this email in relation review my AAT application. I just want to give information about my nomination file, where I am sponsored JAI SHIV SHAKTI NOODLES BAR & CAFE PTY LTD is currently close, End of last year my owner close the restaurant for renovation and after that COVID-19 start. But since my restaurant close I find a new job in my same field as a chef with new management and new place SOUTHERN CROSS CLUB CANBERRA. If AAT need any documents related my new job I am able to provide.

   So I am humbly requesting please give me a one more chance so I can change my nomination to SOUTHERN CROSS CLUB because they are ready to hire me. It’s all about my future, I haven’t did anything wrong, I am still working in my same field from last 5 year. If AAT arrange a hearing for me I can explain everything with proof. [errors in original]

8. On 2 December 2020, the Tribunal wrote to the Applicant pursuant to s.359A of the Act, in the following relevant terms:

   I am writing in relation to your application for review of the decisions [sic] by a delegate of the Minister for Home Affairs (Minister) on 15 November 2019 to refuse to grant the Regional Employer Nomination (subclass 187) visa. The application for review was made on 3 December 2019 to the Administrative Appeals Tribunal (Tribunal).

   In conducting the review, the Tribunal is required by section 359A of the Migration Act 1958 (Migration Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are that on 30 November 2020, the Tribunal affirmed a decision made by a delegate of the Minister to refuse the application for approval of the nomination of a position in Australia made by Jai Shiv Shakti Noodles Bar & Café Pty Ltd under r.5.19 of the Migration Regulations 1994 (Regulations).

   The information before the Tribunal is relevant to the review because the Tribunal may find that, as a result of the above-mentioned decision, clause 187.233(3) of Schedule 2 of the Regulations is not satisfied in relation to your application. Clause 187.233(3) requires that there is an approved nomination of the position. Given the Tribunal’s decision on 30 November 2020 in the nomination application by Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd, it appears that the nomination of the position to which your application relates, has not been approved.

   Subject to your comment and response, if the Tribunal relies on this information, it may find that clause 187.233(3) of the Regulations is not satisfied and this would be the reason, or a part of the reason, for affirming the decision under review to refuse your application for approval of a Regional Employer Nomination (subclass 187) visa.

   You are invited to comment on or respond to the above information in writing.

   Your comments or response should be received by 16 December 2020. If the comments or response and the information are in a language other than English, they must be accompanied by an English translation from an accredited translator. [emphasis in original]

9. On 10 December 2020, the Applicant wrote to the Tribunal, relevantly as follows:

   I JATINDER SINGH WINTER has made valid applications for a Regional Employer Nomination (subclass 187) visa made by Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd under r.5.19 of the Migration Regulations 1994 (Regulations). On dated 15th November 2019 as a fulltime chef.

   I worked 4 years with Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd as fulltime but unfortunately
   Department refused my visa application due to some missing documents.

   After the refusal I have the only option to provide the missing or required documents to department is the MRT/AAT so I apply review with the MRT/AAT.

   On the dated 2nd December 2020 I received the email from MRT/AAT that they also refused my application and invite me to comment on the refusal of the visa application in response to that email I am writing this letter to the MRT/AAT department to consider my application as I always follow the law & my visa conditions all the information are mention blow.

   As a Chef I am working with Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd when I lodge my visa
   application as above mention all the details,

   In November 2019 Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd decided to renovate the
   restaurant/cafe and the close down for renovation but unfortunately suddenly bush fire crises
   happened and renovation plan gone to delay and restaurant remain closed and after the bush fire crises when the start again to plan the renovation that COVID-19 is appear and make the big impact on the all Australian business which include Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd as well and again the renovation plan is postponed.

   But as a usual I need a job to survive, I asked my employer Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd about the opening of cafe but I didn’t get any satisfactory answer from them even I understand that the circumstances they are going through but in my situation I need a work asap so I start the looking another job in my filed elsewhere and soon after I got the job offer from Southern Cross Yacht Club Canberra as a full time chef and from the day I almost lost the my previous job and get new offer in my filed I started with my new employer and till I am working with them.

   If department needs any documentary proof for my new job in same filed I am able to supply any kind of documents from my new employer with my current job.

   My new employer is also happy to provide me sponsorship as well if I needed but due to the law & my circumstances I am not able to change my nomination onshore, I herby request the department to consider my application because I did not breach any condition of my visa or law I always follow the law as appropriate.

   If department given me the permission to change the nomination onshore I can do as required, as the situation in India if I go to Covid-19 is very bad at this stage so as like anyone else am also worried about my health and life I do not want to put in danger due to current situation of Covid-19 cases in India. [errors in original]

10. In January 2021, the Applicant’s representative, Mr Abdul Hasib Khan, registered migration agent, provided the Tribunal with submissions via 7 emails under cover of letter dated 20 January 2021. The Tribunal has carefully considered these submissions and discussed them with the Applicant and his representative at the hearing mentioned immediately below in these reasons.

11. On 29 January 2021, the Applicant appeared before the Tribunal to give evidence and present arguments. The Applicant’s representative also appeared at the hearing with which conducted by the videoconferencing facility, MS Teams.

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 there is an approved nomination pursuant to cl.187.233(3) of the Regulations. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination;

    ·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.

15. The nomination for the position of Chef made by ‘Jai Shiv Shakti Noodles Bar & Café Pty Ltd’ was refused by the Department and that decision was affirmed by the Tribunal on 30 November 2020. This information was put to the Applicant pursuant to s.359A of the Act as set out above in these reasons.

16. At the Tribunal hearing on 29 January 2021, the Applicant submitted that he had worked with the nominator, ‘Jai Shiv Shakti Noodles Bar & Café Pty Ltd’, for 4 years until September 2019. At that time, the business closed for renovations and still remains shut due to the COVID-19 pandemic. As a result, from September 2019, the Applicant increased his hours of work as a Chef at another place of employment, ‘Canberra Southern Cross Club – Yacht Club Venue’, where he had been working casually since December 2018. Since September 2019, the Applicant has worked approximately 35 to 38 hours per week as a casual employee with this employer.

17. The Tribunal was told that the ‘Canberra Southern Cross Club’ intends to nominate the Applicant for a subclass 186 visa ‘in the near future’ and that this nomination would be lodged in February 2021. At the hearing, the Applicant could not identify a specific date by which this foreshadowed nomination would be made, but suggested that it could happen in the month of February 2021. The Applicant also raised the issue of the ‘bar’, pursuant to s.48 of the Act, on a person onshore making a new nomination application and requested that the Tribunal ask the Department to remove this bar so as to allow the Applicant to make such an application while he remained onshore rather than having to go offshore, including due to the COVID-19 pandemic and the associated travel issues with returning to Australia. The Tribunal notes this submission but does not have power to make such a request of the Department.

18. The Tribunal raised with the Applicant’s migration agent his written submission that ‘regulation 5.19(4)(d)(ii)(D) was met, and thus the Nomination should be approved’. Mr Khan told the Tribunal that this related to the Department’s refusal of the nomination for the position, which decision was affirmed by the Tribunal on 30 November 2020. Mr Khan said that he was requesting the nomination itself be approved, but acknowledged this was difficult in circumstances where the business was currently closed. The Tribunal noted its earlier refusal decision regarding the nomination and put to Mr Khan that the issue for the Tribunal in this application was whether cl.187.233(3) of Schedule 2 of the Regulations is satisfied in relation to the Applicant, which requires an approved nomination of the position. Mr Khan agreed with the Tribunal’s proposition and conceded that he ‘may be wrong’.

19. Additionally, the Tribunal put to Mr Khan that the Applicant’s essential submission in this application was his request, as set out in his written submission dated 20 January 2021, for the Tribunal to ‘delay your decision for Case No 1934285 till Jatinder’s Nomination by Southern Cross Yacht Club is approved’. Mr Khan also agreed with this proposition, saying that ‘this is the only way you can help him’ and confirmed that such nomination was expected to be lodged in February 2021. The Tribunal noted that it could not ‘inordinately’ delay its decision and, in the circumstances, the Applicant may wish for the foreshadowed subclass 186 nomination to be lodged as soon as possible. Mr Khan understood and told the Tribunal this would occur after the hearing and in the month of February 2021.   

20. Despite the written and oral submissions made by or on behalf of the Applicant, based on the Tribunal’s decision of 30 November 2020, there is no approved nomination in relation to the nominated position and therefore cl.187.233(3) of the Regulations is not met in relation to this application. While the Tribunal considers that the Applicant has found himself caught in unfortunate circumstances, the Tribunal is limited in this application to determining whether there is an approved nomination. Unfortunately for the Applicant, there is no approved nomination and his application is unsuccessful.

21. The Applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    W Frost
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

    (b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.