Bandara (Migration)

Bandara (Migration) [2020] AATA 4894 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Chamila Samanmali Bandara
Mr Dissanayake Mudiyanselage Vijith Hemantha Bandara
Miss Dissanayake Mudiyanselage Sarini Hemanthi Bandara
Miss Dissanayake Mudiyanselage Sanduni Chamanthi Bandara
CASE NUMBER:  1803119
HOME AFFAIRS REFERENCE(S):          BCC2017/2341830
MEMBER:Susan Reece Jones
DATE:7 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 07 August 2020 at 1:44pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused and refusal affirmed on review – employed in occupation for at least two years before position nomination application made – application made in the evening of the last day of the two-year period – referred to department for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), r 5.19(3)(c), Schedule 2, cl 186.223(2)
CASE
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Finance Broker for the nominator, SISIRA HERATH (Sisira). The delegate noted that Sisira Herath’s nomination of the applicant had been refused on 7 December 2017.
The delegate further noted that the Departmental records showed that and that the applicant was granted one subclass 457 visa on 21 February 2015 to work in the nominated position for Sisira. The nomination application was subsequently lodged on 30 June 2017. However, from the documentation provided to the Department in support of the nomination, it was not demonstrated that the applicant commenced working in the nominated position until 1 July 2015, which was less than two years prior to the lodgement date of the nomination application. The Department therefore refused to approve the nomination. As a result, the delegate found that the applicant did not meet cl.186.223(2), which required that she was the subject of an approved nomination by her employer.
The delegate also refused to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s spouse and children) on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to suggest that they met the primary visa criteria in their own right.
The applicants appeared before the Tribunal on 17 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sisira Herath.
The Tribunal exercised its discretion to hold the hearing by telephone. 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 applicants. 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.
The applicants were represented in relation to the review by their registered migration agent, Mr Joseph Sumith Mayadunne of AUZ-ISAS Migration who was unable to attend the hearing due to his having to attend a hospital on the day of the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the relevant nomination has been approved as required by cl.186.223.
Nomination of a position
Clause 186.223 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 that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
·the nomination has been approved and has not been subsequently withdrawn(cl.186.223(2) and (3));
·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(cl.186.223(3A));
·the position is still available to the applicant (cl.186.223(4)); and
·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).
The applicant applied for a visa on the basis of a nomination made by the applicant’s employer, Sisara Herath. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 7 December 2017.
The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 4 May 2020, the Tribunal (differently constituted) affirmed the Department’s decision (see MRD decision 1732785).
On 18 January 2018, the Department wrote to the applicant to advise that grant of the visas was refused because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required that she was the subject of an approved nomination by Sasira Herath, her nominating employer. The delegate noted because the applicant did not demonstrate that she had been employed in the occupation for at least two years in the period of three years immediately prior to the lodgement of the application, one of the essential criteria for approval of the nomination was not met.
Nominator proceedings
As noted above, the delegate’s decision (a copy of which was provided with the applicant’s review application), identified that Sasira Herath’s nomination of the applicant was refused by the Department.
The nominator, Sasira Herath, sought a review of the Department’s decision with the Tribunal. To that end, the nominator was invited to appear before the Tribunal (differently constituted) to present arguments and evidence as to why the Tribunal should set aside the Department’s decision to refuse the nomination and substitute a new decision to approve that nomination. Sasira Herath as the nominator, and the applicant, both appeared before the Tribunal hearing on 28 January 2020.
The Tribunal affirmed the Department’s decision on 4 May 2020.
Applicant proceedings
On 15 May 2020, the Tribunal wrote to the applicant under s.359A to confirm that the refusal of approval of the nominated position made by Sisira Herath was affirmed by the Tribunal on 1 May 2020 (you have said 4 May 2020 above??). The Tribunal invited the applicant to comment or to respond by 29 May 2020.
On 12 June 2020 by way of email, the applicant’s representative responded to the Tribunal’s s.359A invitation and provided many of the documents that had previously been provided to the Tribunal in relation to the nominator’s application.
In addition, the applicant’s representative provided a submission to the Tribunal by way of email, “respectfully requesting that the Tribunal adjourn this matter pending the outcome of judicial review”, on the basis that the nominator has lodged a review of the matter with the Federal Circuit Court.
In considering the request of the applicant and so as to ensure the Tribunal had regard to all relevant factors, including the reasons for the request and any other matters relevant to the subclass 186 visa refusal decisions, the Tribunal wrote to the visa applicants on 1 July 2020 to invite them to appear at a hearing on 17 July 2020.
The first applicant Mrs Bandara attended the hearing by way of telephone due to the COVID-19 circumstances. The hearing commenced with the Tribunal providing the applicant with a review of the history of the proceedings in relation to the refusal of the application for nomination firstly by the Department, and then subsequently, by the Tribunal. The Tribunal reminded the applicant that the Tribunal had written to her on 15 May 2020 to notify her of the decision that the nomination had been affirmed and that she was invited to comment on the decision.
Having reviewed the material provided to the Tribunal for this application, the Tribunal invited the applicant to outline and explain her employment history with Sisira Herath.
The applicant provided an account of her work experience stating that she commenced working with Sisira Herath on 1 July 2015.
The applicant, having finished work on the afternoon of 30 June 2017 and thinking that she had completed her 2-year obligation required under the terms of the visa, lodged the application for approval of the nomination in the Employer Nomination (subclass 186) visa on the evening of 30 June 2017. The Tribunal notes that the application for nomination is recorded as being lodged at 21.40pm on 30 June 2017. As the application was lodged on 30 June 2017, and because the applicant commenced working on 1 July 2015, the delegate found that the applicant had not demonstrated she commenced working in the nominated position for at least two years before she lodged the nomination, as required by r.5.19(3)(c). Put simply, the applicant applied two hours and twenty minutes earlier than the 2-year anniversary of employment with the nominator.
The Tribunal outlined to the applicant that on this basis, the nomination by Sisira Herath did not meet the requirements of cl.186.223(2) of the legislation, and the nomination had failed. As the Tribunal subsequently affirmed the Department’s decision on 1 May 2020 on the same grounds, and the nomination was refused. On this basis, the applicant understood that the Tribunal in these proceedings could not approve her application
Request to delay Tribunal decision
In relation to the applicant’s request that the Tribunal provide an adjournment to wait for the outcome on the nomination review of Sisira Herath before the Federal Circuit Court, the Tribunal is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. It has therefore considered the applicant’s request but declines to defer its decision in this matter for a further period.
In reaching this conclusion, the Tribunal gives weight to the fact that cl.186.233 requires that, amongst other things, at the time of the Tribunal's decision, the applicant continues to be the subject of an approved nomination by the original employer who nominated her at the time that she made her visa application.
The Tribunal has also had regard to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, in which the Courts held that the Tribunal is not obliged to indefinitely defer its decision-making processes to enable an applicant to try to meet the relevant visa criteria.
Having given active consideration of the request of the applicant to defer making a decision until the outcome of the Federal Court decision on the nomination, and having regard to all relevant factors including the reasons for the request, the Tribunal finds that:
·the Tribunal is required to make a decision efficiently and justly and must not delay making a decision unnecessarily;
·the email of the representative acknowledges that the nomination by Sisira Herath has been unsuccessful;
·in accordance with the requirements set out in the legislation, the Tribunal cannot remit the visa application without the approval of the nomination of Sisira Herath;
·the Tribunal cannot postpone indefinitely making a decision in relation to this application as implicitly requested in the applicant’s request;
and
·there is no indication of when a Federal Court decision is expected or indication that the Federal Court case will succeed and hence, the Tribunal does not consider it appropriate to delay a decision merely because the nominator Sisira Herath has appealed to the Federal Court.
Accordingly, given the finding that cl. 186.223(2) is not met, and thus does not meet cl. 186.223 as a whole, the appropriate course is to affirm the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Ministerial referral
The Tribunal has no power to waive the specific requirements in cl. 186.223 which prescribe the only ways in which that clause can be met. Nor (as discussed with the applicant at the hearing), does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of her case.
On the basis of the above, the Tribunal finds that the applicant does not meet the requirements of cl. 186.223 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a subclass 186 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed. The Tribunal must also affirm the decision not to grant the second, third or fourth named applicants a subclass 186 visa, as it finds that they cannot satisfy the secondary visa criteria to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that any of them meets the primary visa criteria in their own right.
The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so.
Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:
The guidelines on unique or exceptional circumstances include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.
There is no evidence before the Tribunal that the applicant’s case falls into any of the identified ‘inappropriate to refer’ circumstances listed on the Department’s website.
The Tribunal notes that the applicant is well integrated into the Australian community, having been working here since her arrival in 2015. The applicant, according to Mr Herath who provided evidence at the hearing, has been integral to growth of the nominator’s business since 2015, and he directly attributed much of the increase in the nominator’s finance business directly to the applicant. Having years of banking experience, being bi-lingual and from Sri Lanka, the nominator explained that the applicant is ideally suited to support the services the nominator’s business provides to the large Sri Lankan community in Victoria. The applicant also explained to the Tribunal that her husband who was a former schoolteacher in Sri Lanka, has established a very successful decking business and both their daughters work full time.
The Tribunal is not aware of any similar cases where an applicant has lodged an application some 2:20m early. The Department’s online application process did not alert applicants to the consequence of lodging early – ie if the applicant had waited the 2:20m, she would have lodged the application on 1 July 2017 and the application may not have been ultimately refused.
The Tribunal acknowledges that the legislation sets out time limits for various visa and nomination categories, and that they are intended to ensure that temporary visa holders must have worked for their nominating Australian employers for a sufficient period to warrant being granted permanent residence, and that it is intended that these provide consistency of expectation for employees and employers alike. However, as noted above, the Tribunal considers the circumstances of the applicant’s case to be unusual, in the sense that it is not disputed that she has been continuously working in her nominated role with her nominating employer since 1 July 2015, and at the time that she lodged the nomination application, she had for all intents and purposes, been working for her employer for 2 years. The Tribunal also notes that it appears that the nomination met the other r.5.19(3) criteria apart from the failure to meet r.5.19(3)(c) due to the nomination being lodged approximately 2:20 mins before the 2 year period had run its course.
Under these circumstances, the Tribunal considers that the application of the relevant legislation does lead to an unfair or unreasonable result in the applicant’s case, and accordingly, will refer the matter to the Minister.
On the basis of the above, the applicant does not meet the requirements of cl.186.223 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a subclass 186 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Susan Reece Jones
Member

ATTACHMENT A
186.223(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 1114B(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 is still available to the applicant.
(5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.

[2020] AATA 4894

7 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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