1908053 (Migration)

[2020] AATA 3407

1908053 (Migration) [2020] AATA 3407 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908053

MEMBER:Alison Mercer

DATE:30 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2020 at 10:30am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Metal Fabricator – subject of an approved nomination – review application withdrawn – alleged exploitive conduct of former employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359
Migration Regulations 1994 (Cth), Schedule 1, para 1114B; Schedule 2, cls 187.223, 187.233

CASES
Singh v MIBP [2017] FCAFC 105

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (the Act).

2. The applicant applied for the visa on 11 July 2017. 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Metal Fabricator.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.223(3) of Schedule 2 to the Regulations, which requires him to be the subject of an approved nomination by his nominating employer ([Company 1] as trustee for [Family Trust 1], trading as [Business 1]) (‘[Business 1]’). The delegate found that the Department had refused [Business 1]’s nomination of the applicant on 14 January 2019. The delegate found that as the applicant did not meet cl.187.223(3), he did not meet cl.187.223 as a whole and could not be granted a subclass 187 visa in the TRT stream. The delegate further found that the applicant had not made any claims to meet the criteria for a visa in the Direct Entry stream.

6. The Tribunal received a review application from the applicant on 3 April 2019. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, [Ms A], to be his representative and authorised recipient for correspondence.

7. The Tribunal wrote to the applicant, via his agent, on 10 February 2020 to invite him to attend a hearing by teleconference (as the applicant was in Western Australia and the Presiding Member in Melbourne) on 19 March 2020. In the hearing invitation letter, the Tribunal noted that the applicant’s subclass 187 visa application made in the Temporary Residence Transition (TRT) stream was refused because he did not have an approved nomination by his Australian employer and thus did not meet cl.187.223 of Schedule 2 to the Regulations. The Tribunal further noted that it appeared that the applicant could not satisfy cl.187.223(3), as a new nomination made by another employer (or a new nomination made by his original employer) would not satisfy that provision. The Tribunal advised that if he did not meet cl.187.223, the Tribunal would have to affirm the decision to refuse to grant him a subclass 187 visa.

8. On 12 March 2020, the applicant’s agent advised that she had passed on the hearing invitation to the applicant but had not had a response from him and therefore considered that she no longer acted for him. On 14 March 2020, the Tribunal received an email from the applicant appointing [Mr B] as his authorised recipient for correspondence, on the basis that he had experienced difficulties communicating with his agent. The applicant indicated that he wished to attend a hearing.

9. On 17 March 2020, the applicant requested that the hearing on 19 March 2020 be postponed on the basis that he had recently commenced a new job and it would be difficult for him to take leave at the scheduled hearing date and time. He indicated his availability from 27 March 2020 onwards.

10. On 18 March 2020, the Tribunal wrote to the applicant to advise that it would reschedule the hearing and notify him shortly of the new date and time.

11. On 15 June 2020, the Tribunal wrote to the applicant to invite him to a telephone hearing on 26 June 2020.

12. On 17 June 2020, the Tribunal received a hearing invitation response indicating that the applicant, his agent and [Mr B] would attend the telephone hearing on 26 June 2020.

13. On the day of the hearing, the applicant’s agent provided a copy of a letter from [Ms C] of the same date in support of the applicant’s case, the contents of which can be summarised as follows:

    ·[Ms C] knew the applicant in her former capacity as Operations Manager at [Business 1], although she had since left the company and was unaware of the specific circumstances in which the applicant ceased employment there;

    ·she knew the applicant from 2014 when he commenced work as a Boilermaker/Welder at [Business 1] as the holder of a subclass 457 visa;

    ·she supervised the applicant and considered him to be one of the most highly skilled welders within the company, a valuable team member and an outstanding employee;

    ·she was aware of [Mr D]’s poor behaviour towards the applicant and other staff during her time there, which included refusing to pay staff with whom he had a dispute, and refusing to pay annual leave to staff. He also required staff to pay for their own high-risk fork lift licences. She tried to intercede on many occasions to support the staff but as [Mr D] was the owner of the business, his will prevailed;

    ·it was unfortunate that [Mr D], on behalf of [Business 1], withdrew the applicant’s nomination, as the applicant was one of the hardest working employees in the company; and

    ·she asked the Department to reconsider granting the applicant permanent residence given that what had occurred was unfair and outside his control.

14. The applicant appeared before the Tribunal by telephone on 26 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B] and legal submissions from the applicant’s agent. The Tribunal and the applicant were assisted by an interpreter in the English and Tagalog languages.

15. The Tribunal exercised its discretion to hold the hearing by telephone as 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 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.

16. At the hearing, the applicant told the Tribunal that he understood from his agent that his subclass 187 permanent residence visa application had been refused by the Department due to the associated refusal of [Business 1]’s nomination of him. He understood from his agent that the nomination was refused because [Business 1] did not provide verifiable evidence to the Department that it met the nomination requirements.

17. The applicant’s agent confirmed that it took 2 years for the Department to actively consider the applicant’s subclass 187 visa application and the associated nomination by [Business 1], during which time she had contacted the Department on a number of occasions to check whether any further information was required, but ultimately the Department did not respond before making a decision that the nomination lacked sufficient evidence that [Business 1] met the applicable training benchmarks. The agent told the Tribunal that [Business 1] lodged a review application with the Tribunal (differently constituted) in relation to the nomination refusal decision but it later withdrew this review application, with the result that the Tribunal (differently constituted) made a negative decision (that is, it affirmed the Department’s decision to refuse to approve the nomination). The Tribunal confirmed with the parties that its records indicated that another Tribunal Member made a ‘no jurisdiction’ decision in relation to the nomination refusal on 1 September 2019 after [Business 1] withdrew its review application. The Tribunal noted that this meant that the nomination refusal was no longer under review, and could not now be approved.

18. The applicant queried how his former employer could have done that to him. He told the Tribunal that he worked for [Business 1] for 4 years, during which period he had worked very hard, but had also been underpaid and not given full-time work. In addition, he had been bullied and treated very badly by [Mr D], the owner of the business. He (and other subclass 457 visa holders employed there) put up with this as they were loyal and did not want to jeopardise their permanent residence applications. The applicant said that it was a great injustice that [Mr D] then withdrew [Business 1]’s nomination review application of him, thereby effectively destroying the applicant’s permanent residence application. The applicant noted that both [Mr B], a former colleague at [Business 1], and [Ms C], the former Operations Manager there, could confirm how he was treated and what had happened at [Business 1]. In particular, he noted that [Ms C] had signed the sponsorships and nominations for both his subclass 457 and 187 visa applications, and was still supportive of him.

19. The Tribunal indicated that it had read [Ms C]’ letter, but it appeared that the person with the ultimate authority to make decisions on behalf of [Business 1] was its owner and director, [Mr D], and he had withdrawn the nomination review application (for whatever reasons): this meant that the applicant could no longer satisfy cl.187.223(3) (and thus cl.187.223 as a whole), regardless of the fact that this was outside the applicant’s control, and that he appeared to have been exploited by his former employer.

20. The applicant reiterated that he was bullied and taken advantage of by his former employer because [Mr D] knew that the applicant (and the other subclass 457 visa holders employed there) had no choice but to put up with this in order to meet the requirements for permanent residence. The applicant noted that he endured this treatment for at least 12 months to qualify for permanent residence, during which time he was separated from his family and friends in the Philippines. He also noted that at times, as he was not given work and only paid for the hours he actually did work, he was unable to support his family, despite the fact that he was supposed to be employed full time. This ultimately led to him seeking and finding new employment, but he noted that the circumstances of his ceasing work for [Business 1] were very confusing and unclear.

21. The Tribunal then took evidence from [Mr B]. He told the Tribunal that he was a former workmate and current friend of the applicant, and could confirm that all staff at [Business 1] were bullied and treated badly by [Mr D], who [Mr B] described erratic and irrational in his behaviour. [Mr B] noted that, as an Australian citizen, he was prepared to stand up to [Mr D], but the majority of the [Business 1] workforce were subclass 457 visa holders from the Philippines, who were very diligent and hardworking, but who felt constrained about complaining about their treatment to the Department or Fair Work Australia for fear of being dismissed and losing their visas, and thus their opportunity to apply for permanent residence. [Mr B] said that he observed multiple instances of exploitation and ultimately left [Business 1] due to not wanting to be part of this. He also said that he wanted to contact the Department and/or Fair Work Australia many times as bullying and intimidation were rife at [Business 1], but was begged not to by the applicant and other temporary visa holders working there due to their concerns that they would lose their employment and their visas. [Mr B] described what he observed of the management practices at [Business 1] during the 2 years that he worked there as shocking. He further described the applicant as one of the hardest working colleagues that he had ever worked with, and expressed his view that the applicant had been the subject of a serious injustice. [Mr B] expressed frustration at the process whereby the applicant had ended up being refused permanent residence through no fault of his own, noting that [Ms C] had advised him that [Business 1] could and should have been able to address the training concerns held by the Department but evidently could not or did not, then withdrew its review of the nomination of the applicant.

22. The Tribunal discussed with the applicant, [Mr B] and the agent its view that legally, cl.187.223(3) did not give the Tribunal any discretion to consider why the applicant was not the subject of an approved nomination (for instance, due to factors beyond his control), merely whether he was or not, as at the time of the Tribunal’s decision. It therefore indicated that it appeared that it would have to make adverse finding on this issue, on the available evidence, although it made clear its sympathy for the circumstances described by the applicant and [Mr B]. The Tribunal further observed that these were matters that they still may wish to report to the Department and/or Fair Work Australia.

23. The applicant confirmed that in the meantime, he had found new employment and been granted a subclass 482 visa valid for 4 years on that basis. However, he regarded the refusal of his subclass 187 permanent residence visa as extremely unfair and said that he sought justice in relation to that application. [Mr B] added that the applicant was a highly skilled, hard working welder, whose skills remained in demand in Australia, and that he felt the law should be changed in relation to the subclass 187 visa program to recognise the kind of extenuating circumstances experienced by the applicant, who felt that he had effectively sacrificed 4 years working for an employer who had failed him and exploited him.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

25. Clause 187.223 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 made as part of the current visa application.

26. 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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in r.5.19 and the relevant written instrument)

    ·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.

27. The delegate’s decision, a copy of which was provided by the applicant to the Tribunal, notes that [Business 1]’s nomination of the applicant was refused on 14 January 2019. While [Business 1] sought review of that decision at the Tribunal, that review application was withdrawn on 28 August 2019, as outlined by the agent at the hearing.

28. The Tribunal therefore must find that the applicant is not the subject of an approved nomination by [Business 1] and thus cannot satisfy cl.187.223(3), and thus does not meet cl.187.223 as a whole.

29. In reaching that conclusion, the Tribunal notes that it is a requirement for the Temporary Residence Transition stream (cl.187.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

30. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 (which is worded almost identically to cl.187.223) refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

1. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  There is no longer a nomination review pending in this case.

2. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

3. The applicant has only sought to satisfy the criteria for a subclass 187 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.

4. The Tribunal notes that it found both the applicant and [Mr B] to be sincere and credible in their oral evidence at hearing (supported also by [Ms C]’ letter). It therefore appears that the applicant has been the subject of exploitative treatment by his former employer, [Business 1], which may merit further investigation by the Department and/or Fair Work Australia.

5. The Tribunal also notes that it appears open to the applicant to request Ministerial intervention under s.351 of the Act, if he considers that his case is sufficiently compelling. The guidelines for Ministerial intervention are set out on the Department’s website:

   >

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

   Alison Mercer
   Member

   
   

   ATTACHMENT A

   187.223(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 1114C (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 to which the application relates is located in regional Australia.

   (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.