Bali (Migration)

[2020] AATA 414

Bali (Migration) [2020] AATA 414 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mukesh Bali
Mrs Shashi Bala

CASE NUMBER:  1724276

DIBP REFERENCE(S):  BCC2015/4025310

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:         30 January 2020 at 12:20 pm (QLD time)

DATE OF WRITTEN RECORD:                20 February 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination withdrawn – applicant not paid for six months’ work – member of a family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration on 19 September 2017 to refuse to grant the visa applicants Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visas under s.65 of the Migration Act 1958 (the Act).

2. At the hearing on 30 January 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicants applied for the visas on 23 December 2015. At that time Class RN contained one subclass, Subclass 187. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations (the Regulations).

4. In the present case, the first-named applicant (the applicant) is seeking to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream to work in the nominated position of Cook.

5. The delegate of the Department refused to grant the visa, because the delegate was not satisfied that the applicant met cl.187.233 of Schedule 2 to the Regulations as the nomination application in relation to the applicant had been withdrawn, as was set out in the delegate’s record provided to the Tribunal at the time of the applicant’s application to the Tribunal.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 6 October 2017. The applicant was represented in relation to the review.

7. On 9 December 2019, the Tribunal invited the applicant to comment on or respond to certain information before it. The Tribunal sent a letter stating, amongst other things, as follows:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·Department of Home Affairs records indicate that the Trustee for JEET Family Trust lodged an application for approval of an employer nomination in the Direct Entry stream under subregulation 5.19(4) of the Migration Regulations 1994 (the Regulations) with the Department. This application identified the nominated person as Mr Bali for the position of Cook.

   ·On 23 December 2015, you lodged an application for Subclass 187 Regional Employer Nomination (Permanent) visas with the Department. In this application, you provided the employer nomination details for the employer application lodged by The Trustee for JEET Family Trust.

   ·On 13 June 2017, the nomination lodged by the Trustee for JEET Family Trust was withdrawn by the nominator;

   ·There is no evidence as at the date of this letter that a nomination application lodged by the Trustee for JEET Family Trust in favour of Mr Bali has been approved.

   This information is relevant to the review because it suggests that the primary visa applicant, Mr Bali, is not the subject of an approved nomination lodged by the Trustee for JEET Family Trust as required by cl.187.223(2) (sic) of Schedule 2 to the Migration Regulations 1994, one of the criteria that must be satisfied for grant of the Employer Nomination (Permanent) visa. Subject to your comments or response, this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the visa to the primary visa applicant, Mr Bali.

   Further, if the decision under review to refuse to grant the visa to the primary visa applicant, Mr Bali, is affirmed, it follows that this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the visa to the secondary visa applicant, as cl.187.311 of Schedule 2 to the Regulations, requiring a secondary visa applicant to be a member of the family unit of another person who, having satisfied the primary criteria, is the holder of a Subclass 187, would not be met as required.

   You are invited to give comments on or respond to the above information in writing.

8. The Tribunal received a response to its letter from the applicant’s representative on 16 December 2019, requesting an extension of time in which to respond to the Tribunal’s invitation to comment on the information. The Tribunal agreed to an extension, noting that the comments or response were required to be received by 9 January 2020. On 9 January 2020, the Tribunal received a detailed response from the applicant’s representative setting out a number of matters which the Tribunal has taken into account.

9. The Tribunal discussed the detailed background to the visa application and the applicant’s circumstances with the applicant at the hearing. The Tribunal accepts that the applicant has done, from his point of view, all that he could do. The Tribunal further accepts that he found himself in a position where he worked for the employer in question and was not paid for six months and that despite seeking assistance through the Fair Work Commission, did not receive a favourable outcome because the employer disputed the amount he had worked during the period of six months that he maintained he had not been paid.

10. The Tribunal also discussed in detail with the applicant at the hearing the circumstances in relation to the lodgment of an original application and then a subsequent application being lodged without his knowledge by his then migration agent. As discussed with the applicant at the hearing, the Tribunal acknowledges and accepts the applicant’s evidence in relation to the background circumstances of this matter and, whilst not diminishing in any way the circumstances he has found himself in being through no fault of his own, as discussed with the applicant at hearing, the only issue that was the consideration of the Tribunal’s current jurisdiction was in relation to whether he satisfied the requirement in cl.187.233 of Schedule 2 to the Regulations, requiring that there was an approved nomination that had not been withdrawn.

11. The applicant did not dispute that there was no approved nomination and, in fact, his representative in making the submissions of January 2020 also noted and agreed that there was not an approved nomination. The representative also correctly noted in their submission that the relevant criterion was cl.187.233(3) (not cl.187.223(2)) of Schedule 2 to the Regulations and that there would have been an approved nomination had not the nominator withdrawn the application. The Tribunal accepts that would likely have been the case if the nomination application had not been withdrawn. But as discussed with the applicant at hearing, the issue before the Tribunal is not what would have happened if the nomination application had not been withdrawn, but whether, in fact, there was an approved nomination and the evidence before the Tribunal was that there was no approved nomination.

12. The Tribunal accepts that it was only subsequent to all of this that the applicant found out about these matters, including the withdrawal of the nomination application. The Tribunal accepts, as indicated by the representative in the written submissions, that the applicant would likely meet the other requirements for the visa. The Tribunal also acknowledges the submissions that the applicant is of good character and has spent 11 years living in Australia, has ‘invested his life and learning and integrating into the Australian community’ and has made many lifelong friends in establishing himself in Australia, including such that he has strong ties in Australia and would find it difficult to relocate back to his home country.

13. The Tribunal accepts all of these matters without question. The Tribunal also considered, as raised by the applicant, whether there was an opportunity for him to obtain another nomination from another employer. As discussed with the applicant at hearing, the nomination which is required to be approved, for the Tribunal to be satisfied that the necessary clause of the Regulations is met, is the nomination in relation to which the applicant applied for the visa in December 2015 and there is no evidence before the Tribunal of an approved nomination from that employer, or any possibility of an approved nomination from that employer in the future.

14. Furthermore, as discussed with the applicant at hearing, it is now well over two years since the delegate’s decision and the application to the Tribunal, and the applicant has had the opportunity to seek migration advice in relation to other options he might have in that regard, and has the option of seeking further advice after the Tribunal’s hearing and decision and that is a matter for the applicant. As discussed with the applicant at hearing, it is not the Tribunal’s role to provide advice in relation to his rights generally or in relation to future migration options or in relation to what recourse he might have in relation to other matters such as if his previous migration agent has not acted appropriately. That is simply not within the Tribunal’s power or jurisdiction.

15. Having regard to all matters, the criteria in issue as identified in the delegate’s decision and as identified by the Tribunal with the applicant at hearing, is whether pursuant to cl.187.233 of Schedule 2 to the Regulations, the Tribunal could be satisfied that there was an approved nomination in relation to the applicant’s visa application which had not been withdrawn. Notably, this requires the position to which the application relates to be the subject of an approved nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application and it must identify the applicant in relation to the position.

16. So, notably, in relation to that, there would be no benefit in the Tribunal allowing further time for a new nomination, because the nomination is required to be in relation to the position the subject of the original application, as has already been canvassed earlier by the Tribunal in the reasons. As discussed with the applicant at hearing, the evidence before the Tribunal is that the nomination application lodged by the nominating employer was withdrawn. On the evidence before it, the Tribunal finds that there is no approved nomination that has not been withdrawn. This means that the Tribunal must find that it is not satisfied that the requirements of cl.187.233 are met, as required.

17. The primary applicant has only sought to satisfy the criteria of the Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of other visa streams. As the requirements that must be met by a person seeking a visa in the Direct Entry stream have not been met, the decision under review to refuse to grant the applicant a Subclass 187 visa must be affirmed.

18. The Tribunal notes that at the time of application to the Tribunal, the application was also made in relation to a secondary applicant and they would have been required to meet the criterion requiring them to be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that that is the case and the decision would have to be affirmed in relation to any secondary visa applicant, if still relevant.

    DECISION

19. The Tribunal affirms the decision under review.

    Susan Trotter
    Member