Adhikari (Migration)

[2018] AATA 5379

Adhikari (Migration) [2018] AATA 5379 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sundar Babu Adhikari
Mrs Sushila Devkota

CASE NUMBER:  1708817

HOME AFFAIRS REFERENCE(S):           BCC2016/827330

MEMBER:Alison Mercer

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 07 November 2018 at 4:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – no response to s 359A letter – not entitled to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.321

CASES
Singh v MIBP [2017] FCAFC 105
Yang v MIAC [2010] FMCA 890

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 and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 February 2016. 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination. The delegate found that the applicant’s employer, RRPL Global Pty Ltd, had its nomination of the applicant refused by the Department on 4 January 2017. The delegate found that the applicant was therefore not entitled to a subclass 187 visa. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 187 visa on the basis that she did not satisfy the secondary visa criteria to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 21 April 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Suraj Khatri, as their representative and authorised recipient for correspondence.

7. The matter was constituted to a Tribunal Member on 5 September 2018.  On 10 October 2018, the Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act. The Tribunal invited them to comment on or respond on information held by the Tribunal; namely, that:

   ·at the time that the applicants applied for their subclass 187 visas on 29 January 2016, the applicant was nominated by his employer, RRPL Global Pty Ltd (trading as Cinnamon Café and Restaurant) and the second named applicant was included in the application as a member of the applicant’s family unit;

   ·the Department rejected their applications on 3 April 2017 because the delegate found that the applicant did not meet cl.187.233 as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that his employer’s nomination of him for the occupation of Cook had been rejected by the Department on 4 January 2017;

   ·RRPL Global Pty Ltd lodged an application with the Tribunal for review of the decision to reject the nomination on 23 January 2017;

   ·they applied to the Tribunal on 21 April 2017 for review of the Department’s decision to reject their subclass 187 visa applications;

   ·on 9 October 2018, the Tribunal made a decision that it had no jurisdiction to review the Department’s refusal to approve RRPL Global Pty Ltd’s nomination of the applicant as a representative of the company withdrew the review application; and

   ·accordingly, there was currently no approved nomination of the applicant by RRPL Global Pty Ltd and the decision to refuse the nomination was no longer under review by the Tribunal.

8. The Tribunal advised the applicants that the information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved appointment made by the same employer who nominated him, as required by cl.187.233, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as I was a requirement that the primary applicant met cl.187.223; and

   ·the second named applicant would therefore not meet the secondary visa criterion in cl.187.321, which required her to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met the primary visa criteria in her own right.

9. The Tribunal invited the applicants to comment or respond by 24 October 2018. It also advised them that if they did not respond by the due date, or seek an extension of time to respond by the due date, then they would lose their entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without seeking further comments or response from the applicants.

10. The Tribunal did not receive any comments or response, or a request for an extension of time, from the applicants by the due date. The Tribunal is satisfied that its s.359A letter was sent by email to the correct email address nominated by the applicants’ agent, who is their authorised recipient for correspondence, and there is no indication from the Tribunal’s records that the email was undelivered or undeliverable.

11. The applicants have not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where there no evidence that the applicant has the required approved nomination and where the applicants have had the assistance of a registered migration agent but did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain their comments on or response to the information set out in the Tribunal’s letter of 10 August 2018.

12. 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

13. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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 r.1.13A and r.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. It is not disputed that in this case, RRPL Global Pty Ltd lodged a nomination of the applicant prior to 18 March 2018, on 12 February 2016, but it was refused by the Department on 4 January 2017.  A review application was lodged by that employer with the Tribunal on 23 January 2017 but the Tribunal made a decision on 9 October 2018 that it had no jurisdiction to review the Department’s refusal to approve RRPL Global Pty Ltd’s nomination of the applicant because a representative of the company withdrew the review application.

16. The Tribunal therefore finds that the applicant is not the subject of an approved nomination by RRPL Global Pty Ltd.

17. It is a requirement for the Direct Entry stream (cl.187.233) 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).

18. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a Subclass 187 visa). 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 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.

19. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.   

20. Accordingly, the Tribunal must find that cl.187.233 is not met. This means that the applicant does not meet the criteria for a subclass 187 visa.

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.

22. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa, as it finds that she does not meet the secondary visa criteria in cl.187.311 to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence before the Tribunal to suggest that she meets the primary visa criteria in her own right.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Alison Mercer
    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

    (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.