Singh (Migration) [2021] AATA 5533 (13 October 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Manpreet Singh
CASE NUMBER:	1917386
HOME AFFAIRS REFERENCE(S):	BCC2017/1371422 
MEMBER:	Amanda Mendes Da Costa
DATE:	13 October 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 13 October 2021 at 11.21am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – no discretion to consider submission that nomination refusal was flawed – nominating company sold business and is no longer trading – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 15 June 2019 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 13 April 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 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 visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
6.  	The applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments. The Tribunal also heard evidence from Mr Vikrant Kapoor, a director of the  applicant’s previous employer and Mr Ruzbeh Ariana, accountant for the applicant’s previous employer.
7.  	The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a telephone hearing and that the applicant resides in New South Wales (NSW) and due to government restrictions, was unable to travel to Melbourne for the hearing.
8.  	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 to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. 
9.  	On 26 August 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to information which the Tribunal considered if accepted and relied upon by the Tribunal would be the reason or part of the reason for it affirming the decision made by the Department to refuse to grant the applicant a subclass 186 visa.  That information was that on 22 June 2021 the Tribunal affirmed the decision of the Department to refuse the nomination made by Dossa Enterprises Pty Ltd (the nominator) in respect of the applicant.
10.  	The Tribunal advised the applicant that its own records and that of the Department indicated that the applicant was not the subject of an approved nomination by a standard business sponsor.
11.  	The Tribunal explained that the above information was relevant to its review because  it was a requirement for the grant of the visa that the position specified in his visa application was the subject of an approved nomination.
12.  	The Tribunal explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision under review.
13.  	The applicant was requested to provide any comments or response (in writing) by 9 September 2021.
14.  	On 7 September 2021 the applicant provided the Tribunal with a written response, in which he requests the Tribunal to consider the following matters in determining his case:
•	He understands and appreciates the difficulty in his current application for a visa under subclass 186 where the nomination has not been approved.  However, he wishes to present his submission in the matter.
•	Though his employer did not pursue its review application with the Tribunal, the applicant wishes to draw the Tribunal’s attention to the fact that the original decision to refuse the nomination application was flawed.
•	The Department’s case officer refused the nomination because the payroll (salary and wages) did not align with the number of employees working in the business.  The case officer failed to address the fact that there were very few full-time employees at the business at the time.  It may appear that the number of employees is large but many were working 1-2 days a week on a casual basis.
•	He is currently working with new owners of the business.
15.  	The applicant also provided an organizational chart for the nominator trading as Zaaffran Indian Restaurant. This chart shows that the business having over 30 employees, including a general manager, accountant, restaurant manager, bar and wait staff, chefs, cooks, kitchen helpers and apprentices.
16.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
17.  	The issue in the present case is whether the applicant meets the requirements of cl.186.223.
Nomination of a position
18.  	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.
19.  	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.
20.  	During the course of the hearing, the Tribunal discussed with the applicant, the requirement in cl.186.223 that a visa applicant be the subject of an approved nomination.  The Tribunal noted that in his written response the applicant had submitted that the delegate’s decision to refuse the nomination application by the nominator was “flawed”.  However, the Tribunal advised him that it had no jurisdiction to set aside that decision.
21.  	The applicant adopted the submissions made by him in his response dated 7 September 2021.  He explained that he had been employed on a full-time basis in the nominated occupation for the past 12 years.  He said that he considered the nominator did have the financial capacity to employ him when the decision was made to refuse the nomination application. He notes that he had applied for the visa in 2017 and that it took the Department 25 months to determine the nomination application.  At the time the delegate’s decision was made regarding the nomination, Mr Kapoor was managing the business.  After the business was sold in November 2020, he continued to work in the business as a Chef.
22.  	Mr Kapoor told the Tribunal that he a director of the nominator which previously owned and operated the Zaaffran Indian Restaurant in Sydney.  He explained that the applicant had been employed as a Cook in the business for approximately 12 years.  Although the business had been sold, the applicant continued to be employed in the restaurant on a full-time basis.
23.  	Mr Kapoor further explained that he disagreed with the delegate’s decision to refuse the nomination application.  However, he was advised by his lawyer that there was no point in the nominator continuing with its application for review with the Tribunal in respect of that decision, as the company had sold the business and was no longer trading.  Mr Kapoor described the applicant as a loyal and hard-working employee who made a valuable contribution to both the nominator’s and his current employer’s business.
24.  	Mr Ariana told the Tribunal that he was previously the accountant for the nominator.  He explained that at the time of the nomination application the nominator employed 26 employees, comprising 15 full time, eight part time and 15 casual employees.   The delegate found that the amount of wages paid to the staff appeared to be relatively low in comparison to the number of staff.  Mr Ariana said that he disagreed with this assessment and noted that at the time of the application, four of the positions for full-time employees were vacant.  Mr also disagreed with the delegate’s assessment that amount of wages paid to staff raised serious concerns about the terms and conditions being provided to employees of the .
25.  	The Tribunal acknowledges that the applicant and Messrs. Kapoor and Ariana believe that the delegate erred in making her decision to refuse the nomination application.  However, as the Tribunal explained to the applicant it has no jurisdiction to review the decision to refuse the nomination application.
26.  	However, the Tribunal does accept that the applicant has been employed as a Cook in the Zaaffran Indian Restaurant since 2009 and is regarded as a hard-working, diligent and loyal employee. 
27.  	Based on the evidence before it, the Tribunal is satisfied that the application for approval of the nominated position for the applicant made by the nominator was refused by a delegate of the Minister for Immigration.  The nominator sought a review of that decision but it was affirmed by the Tribunal on 2 June 2021. This means that nominator’s application for the nominated position has not been approved.
28.  	There is no evidence to suggest that the applicant is the subject of any other approved nomination.
29.  	Therefore, cl 186.223 is not met.
30.  	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.
DECISION
31.  	The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

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 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.