Ali (Migration)

[2019] AATA 1018

Ali (Migration) [2019] AATA 1018 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ghazanfar Ali

CASE NUMBER:  1711199

HOME AFFAIRS REFERENCE(S):           BCC2017/765569

MEMBER:Katie Malyon

DATE:23 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 January 2019 at 12:52 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Motor Mechanic (General) – sponsor had withdrawn the Company’s nomination– no approved nomination – not the subject of an approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359,
Migration Regulations 1994, r 1.13, Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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 applicant, Pakistani national Mr Ghazanfar Ali, a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Ali applied for the visa on 26 February 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).  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, Mr Ali is seeking the visa in Direct Entry stream to work in the nominated position of Motor Mechanic (General).  Mr Ali was represented in relation to the review by his registered migration agent.

5. The delegate refused to grant the visa because Mr Ali did not meet cl.187.233 of Schedule 2 to the Regulations on the basis the nomination application made by his prospective employer, Orange Mamba Pty Ltd (the Company) was refused by the Department.

   Background

6. Mr Ali was nominated to fill the position of Motor Mechanic (General) ANZSCO 321211 with the Company in Cairns.  However, the nomination application made by the Company was refused by the Department on 4 April 2017.  As a result, the Department refused Mr Ali’s Subclass 187 visa application.  The Company sought review of the delegate’s refusal of its nomination application in related matter File No. 1708048.  On 3 December 2018, the Tribunal received notification from the liquidator of the Company that he had withdrawn the Company’s nomination in respect of the position of Motor Mechanic (General) for Mr Ali.  The liquidator had been appointed by the Supreme Court of Queensland on 24 September 2018.  The Tribunal has independently confirmed the appointment of the liquidator to the Company.       

7. Accordingly, on 7 December 2018, the Tribunal wrote to Mr Ali pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The Tribunal informed Mr Ali that it had received notification from the liquidator of the Company that the nomination in respect of him was withdrawn. As a result, the position to which his Subclass 187 visa application relates could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. Mr Ali’s representative responded on 19 December 2018 indicating that his client would not withdraw his Subclass 187 visa application the subject of review.  The representative noted that his client accepts the Tribunal will affirm the decision because he is not the subject of an approved nomination. 

9. Having received a response to its s.359A letter, the Tribunal invited Mr Ali to a hearing. However, on 17 January 2019 the representative advised that his client would not be attending the hearing and formally requested the Tribunal consider making a recommendation to the Minister pursuant to s.351 of the Act. The representative attached a signed letter from Mr Ali dated 12 December 2018 giving his address in suburban Cairns and setting out the basis of his request for ministerial intervention.

10. In his letter, Mr Ali states:

    ·he is working as Mechanic in far north Queensland;

    ·he was unaware of the liquidation of Orange Bamba (sic) Pty Ltd until advised by his representative and, at no time, did his (prospective) employer contact him about this (emphasis added);

    ·it is his understanding that there is a skill shortage in Cairns for Mechanics as confirmed by the accompanying article from Dieselnews.com.au “Solving Australia’s Automotive Skills Shortage” which states that Australia needs up to 19,000 more trained mechanics according to a survey by Auto Skills Australia;[1]

    ·he hopes the Tribunal can make a recommendation to the Minister to intervene and grant him a Subclass 187 visa;

    ·he is aware his review application cannot continue because his employer went into liquidation and it is very unfair to penalise him because of that (emphasis added); and,

    ·his review at the Tribunal would, in his opinion, have been approved had it not been for his (prospective) employer going into liquidation and none of this is his fault (emphasis added).

    [1] >

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in Mr Ali’s case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

12. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the 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, the criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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.

13. As noted above, the Company’s nomination was refused by the Department on 4 April 2017 and, some 18 months later on 3 December 2018, the Company’s court appointed liquidator advised the Tribunal that he wished to withdraw the Company’s review application before the Tribunal. In response to the Tribunal’s s.359A letter, Mr Ali’s representative accepted that the Tribunal will affirm the decision to refuse the Subclass 187 visa application because his client is not the subject of an approved nomination. Further, in response to the Tribunal’s invitation to a hearing, Mr Ali acknowledged his review cannot continue because the Company has gone into liquidation.

14. On the evidence before it, the Tribunal finds that the nomination made by the Company for the position of Motor Mechanic (General) to which Mr Ali’s Subclass 187 visa application relates has not been approved. Therefore, it follows that Mr Ali does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

15. Mr Ali 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 stream.  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.

    Is this an appropriate case to refer to the Ministerial?

16. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

17. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[2]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include, relevantly, where:

    “exceptional economic … or other benefit that would result from the person being permitted to remain in Australia”.

    [2] homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention#content-index-1

18. The Tribunal accepts that the Company’s liquidation is not the fault of Mr Ali and that, based on evidence in the Department’s file, he has completed a Certificate III in Automotive Mechanical Technology at the Central Australian College in Footscray in October 2012 as well as a Certificate IV in Automotive Management at North Melbourne College in November 2014.

19. However, the Tribunal has insufficient documentation to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the guidelines published by the Minister.  Whilst the Tribunal acknowledges receipt of the article published in Dieselnews.com.au confirming Australia needs up to 19,000 more trained mechanics and it notes the occupation of Motor Mechanic (General) ANZSCO 321211 is on the current Medium and Long-term Strategic Skills List of 15 March 2018, no evidence has been provided of Mr Ali’s current employment as a Mechanic or the need for his current employer to continue to employ him in that role.  Nonetheless, it is open to Mr Ali - if he so wishes - to seek ministerial intervention directly and provide a submission supported by evidence to the Minister for consideration. 

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2

    ..
    
    

    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.

    oOOo