1318965 (Migration)

[2015] AATA 3622

1318965 (Migration) [2015] AATA 3622 (10 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajwinder Singh Gill

MRT CASE NUMBER:  1318965

DIBP REFERENCE(S):  CLF2012/146130

TRIBUNAL MEMBER:  Alison Mercer

DATE:10 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

Statement made on 10 November 2015 at 3:16pm

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 13 December 2013 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 28 June 2012 on the basis of proposed employment in the position of Farm Manager/Fruit or Nut Grower. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations) by the applicant’s proposed employer, Murrawee Farms Aust Pty Ltd.

3. At the time of application, Class BW contained two subclasses: subclass 856 (Employer Nomination Scheme) and subclass 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(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to 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.

4. The delegate refused to grant the visa because she found that the applicant did not meet cl.857.221 of Schedule 2 to the Regulations, which required that there was an approved appointment in relation to him made by the employer who had nominated him.  The delegate found that the nomination application made by Murrawee Farms Aust Pty Ltd had not been approved.

5. The Tribunal received a review application from the applicant on 14 December 2013.  It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Bikkar Singh Brar, as his representative and authorised recipient for correspondence for the purposes of the review.

6. On 3 June 2015, the Tribunal wrote to the applicant via his agent pursuant to s.359A of the Act.  The Tribunal advised that it was required to invite him to comment or respond to certain information that (subject to his response or comments) would be the reason (or part of the reason) for affirming the decision under review.  The Tribunal advised the applicant that the  Department’s records indicated that his employer, Murrawee Farms (Aust) Pty Ltd, had its nomination of him refused on 14 November 2013.  The Tribunal noted that Murrawee Farms (Aust) Pty Ltd lodged an application for review of that decision on 3 December 2013, and that on 3 June 2015, the Tribunal made a decision that it had no jurisdiction in relation to that review application as the administrators of Murrawee Farms (Aust) Pty Ltd had withdrawn the review application.  As such, there was currently no evidence of an approved nomination by Murrawee Farms (Aust) Pty Ltd in relation to the applicant.  The Tribunal advised that this information was relevant to the decision under review because it indicated that the applicant was not the subject of an approved appointment made by the same employer who had nominated him pursuant to cl.857.213(a) at the time of the visa application, as required by cl.857.221.  If the Tribunal found that he did not meet cl.857.221, this would be a reason to affirm the decision under review.

7. The Tribunal noted that it had received advice from Ms Gaye Tripodi, formerly of Murrawee Farms (Aust) Pty Ltd, and now a principal of a separate company, Murrawee Farms Pty Ltd, that the applicant was working for the latter company as a Fruit or Nut Grower, but advised the applicant that the law did not permit a different company to take over the nomination during the course of the review.  The Tribunal further noted that the 2 companies were separate entities and that the company that had originally nominated the applicant had withdrawn its review application.  The Tribunal advised that it could not substitute the new company into the review application, nor could it assess and approve a new nomination by that company.

8. After requesting an extension of time to respond, the applicant’s agent provided a response on 3 July 2015, in which he stated that there were exceptional circumstances in the case.  He stated that the applicant believed that the initial sale of the nominating business was illegal, and the decision of the company’s administrators to do so had been contested in court.  The matter was ultimately settled out of court and the nominating business was paid an unspecified amount.  This occurred some time after the review application in relation to the nomination was made.  The agent suggested that the administrators of Murrawee Farms (Aust) Pty Ltd may have withdrawn the nomination review application due to a souring of the relationship between them and the principals of the company after the court action.  The agent argued that the Tribunal should consider that the review application in relation to the nomination was still valid. He requested that the Tribunal give some time to the applicant to work out his employment situation with the administrators of Murrawee Farms (Aust) Pty Ltd.

9. On 8 July 2015, the Tribunal received a further submission from the applicant’s agent attesting to his integration into the Swan Hill community while employed by Murrawee Farms (Aust) Pty Ltd.  He noted that the applicant’s wife worked part time in the aged care sector in Adelaide and that they had had a child in Australia.  The agent stated that the applicant was now employed by 4 Ways Fresh Produce Pty Ltd in South Australia, and that this employer had received a positive outcome from ImmiSA (the regional certifying body in South Australia) and a nomination application was in progress. The applicant again requested a delay in the Tribunal making a decision and stated that the applicant and his family had suffered emotionally and financially due to the bank’s wrong decision to appoint administrators to Murrawee Farms (Aust) Pty Ltd during the processing of the nomination application. The agent sought a 4 month deferral in order for the applicant and his current employer to lodge a new nomination and visa application and have these approved.

10. The submission was accompanied by a letter from Ms Deborah Quinn of Murray Mallee Local Learning & Employment Network (formerly the skilled migration coordinator of the Swan Hill Rural City Council) dated 20 May 2015.  She stated that she supported the nomination of the applicant and had worked closely with Murrawee Farms in her previous role to assist them with their workforce needs due to the well-documented skill shortage in the horticulture industry. This made it vital for businesses such as Murrawee Farms to retain skilled workers such as the applicant.  Ms Quinn further stated that both the applicant and Murrawee Farms had made valuable contributions to the Swan Hill community region.

11. On 13 July 2015, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 14 August 2015.

12. The applicant attended the hearing on 14 August 2015 with his agent.  The Tribunal discussed with the applicant its preliminary view that he could not meet cl.857.221 at the time of the Tribunal’s consideration as his original employer (Murrawee Farms (Aust) Pty Ltd) did not have an approved nomination (regardless of the reasons for this, and acknowledging that this was out of the control of the applicant).  The applicant and his agent acknowledged this. 

13. The applicant confirmed that although Ms Tripodi had wanted him to continue to work for either the original company or for another company run by her and her husband, this ultimately did not proceed.  The applicant said that he relocated from Swan Hill to Adelaide as the administrators of Murrawee Farms (Aust) Pty Ltd laid off all the employees from that company, and his wife fell pregnant and there were better health care services in Adelaide for her. The applicant confirmed that he married his wife after lodging his visa application, and that they have a 1 year old son born in 2014.  They were not included in his visa application as he was not married at that time.

14. The applicant and his agent reiterated that the applicant’s original nomination did not proceed due to reasons outside the applicant’s control and that he was now with a new employer in Adelaide who wished to remain with them.  The applicant’s agent told the Tribunal that the South Australian Regional Certifying Body (ImmiSA) had already endorsed the new employer’s nomination and it had been lodged with the Department on 10 July 2015 by another lawyer (not the applicant’s present agent).  The agent said that the lawyer who lodged it was confident that the new nomination would be approved in 1 to 2 months, and then the applicant could lodge a new visa application.  He and the applicant reiterated their request that the Tribunal delay making a decision until November 2015 to allow this to occur.

15. The Tribunal discussed with the applicant and its agent its view as to whether the request to delay its decision was reasonable.  It indicated that where the reason given for requesting that the Tribunal defer making its decision for a significant period would not affect the outcome of the review application (as here), then it would generally not defer making its decision for a period of 3.5 months, as requested by them.  However, the Tribunal indicated that due to its workload, it would most likely make a decision on this review application in 1 to 1.5 months’ time.

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 is the subject of an approved nomination.

    Approval of appointment

18. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the applicant.

19. It is not disputed, and the Tribunal finds, that the applicant’s original nominating employer, Murrawee Farms (Aust) Pty Ltd, has gone into administration and that the administrators advised the Tribunal that the application for review was withdrawn.  The Tribunal (as presently constituted) therefore made a decision on 3 June 2015 that it had no jurisdiction to review the refusal of the nomination application (see MRT 1318162).  There is no pending review with the Tribunal and no evidence before the Tribunal to indicate that there is another nomination with the Department by this employer.

20. The Tribunal therefore finds that the applicant was not the subject of an approved appointment made by the same employer who had nominated him pursuant to cl.857.213(a) at the time of the visa application, as required by cl.857.221.  The Tribunal finds that the applicant does not meet cl.857.221, and cannot be granted a subclass 857 visa.

21. The applicant has only sought to satisfy the criteria for a subclass 857 visa. No claims have been made in respect of the other visa in the class. As the applicant has not met the criteria for a Subclass 857 visa, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

    Alison Mercer
    Member