1504964 (Migration) [2015] AATA 3883 (16 December 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mrs Sangeeta Dhawan
CASE NUMBER:	1504964
DIBP REFERENCE(S):	CLF2011/92352 
MEMBER:	Steve Georgiadis
DATE:	16 December 2015
PLACE OF DECISION:	Adelaide
DECISION:	The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

  Statement made on 16 December 2015 at 2:12pm

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 Immigration on 26 March 2015 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).
2.  	The applicant applied for the visa on 8 September 2011 on the basis of proposed employment in the position of Pastry-cook (ANZSCO 351112). The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).
3.  	At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(2) of the Migration Regulations 1994 (the Regulations), the relevant subclass in the present case is Subclass 856. The criteria for this visa subclass are set out in Part 856 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa, need satisfy only the secondary criteria.  In this case the application for review has been made only in respect of Mrs Sangeeta Dhawan.
4.  	The applicant appeared before the Tribunal on 16 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
5.  	For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
6.  	The issue in the present case is whether, at the time of decision, the applicant meets the requirements for a Class BW visa.
Approval of appointment
7.  	Clause 856.221 requires that at the time of decision, the appointment mentioned in paragraph 856.213(a) in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must also continue to satisfy the criteria for approval in r.5.19 of the Regulations and still be available to the applicant. 
8.  	The delegate refused to grant the visas because the applicant did not meet cl.856.221 of Schedule 2 to the Regulations as the nominator employer sponsor has sold the business and the delegate considered that the nominated position was no longer available to the visa applicant - cl.856.221(d). The delegate found that as the applicant had not satisfied any of the primary criteria for the visa class, the secondary applicant Mr Sidhu Beant Singh as a member of the same family unit (spouse), was therefore also unable to satisfy the criteria for the visa class. As aforementioned, in this case the application for review has been made only in respect of Mrs Sangeeta Dhawan.  A copy of the delegate’s decision was attached to the application for review.
9.  	The Tribunal accepts from the Form 785 before it lodged on 7 June 2011, that the applicant was nominated by Doh Enterprises Pty Ltd (ACN: 109738623) ATFT Darling Trust and Others trading as Brumby’s Swan View for the position of Pastry-cook (ANZSCO 351112).  The ABN for this business set out on the application form is 49943399005. 
10.  	Reference to the Australian Government ABN Lookup website (www.abr.business.gov.au) accessed on 16 December 2015 records that the ABN: 49943399005 for this business was cancelled from 27 January 2015.  The ASIC database register accessed on 16 December 2015 (https://connectonline.asic.gov.au) also confirms that Doh Enterprises Pty Ltd was deregistered on 11 October 2015 and remains deregistered. The applicant told the Tribunal that she understood from her former employer that the business was sold late in 2014. When asked if the appointment for the position of Pastry-cook with the nominating employer is still available to her, the applicant said she continues to work as a Pastry-cook with a different employer but had no evidence to show that the nominator in this application remains in business with an active ABN. The Tribunal accepts from this oral evidence and the aforementioned ABN Lookup records that the ABN: 49943399005 for the nominating employer was cancelled from 27 January 2015 and has not been renewed. The Tribunal accepts that the nominating employer no longer trades as a business. 
11.  	Having considered the available evidence before it and the submissions discussed, the Tribunal finds there is no evidence that the appointment for the position of Pastry-cook with Doh Enterprises Pty Ltd (ACN: 109738623) ATFT Darling Trust and Others trading as Brumby’s Swan View mentioned in paragraph 856.213(a), is still available to the applicant or continues to satisfy the criteria for approval.
12.  	Therefore, cl.856.221 is not met.
13.  	The applicant has only sought to satisfy the criteria for a Subclass 856 visa. No claims have been made in respect of the other visa in the class.  As the applicant has not met the primary criteria for a Subclass 856 visa, the decision under review must be affirmed.
14.  	The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

Steve Georgiadis
Member