Bernard (Migration)

[2021] AATA 2268

Bernard (Migration) [2021] AATA 2268 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karl Bernard
Mrs Medone Steffie Karl Bernard
Miss Kathy Mariya Bernard

CASE NUMBER:  1923532

HOME AFFAIRS REFERENCE(S):          BCC2019/106144

MEMBER:Amanda Ducrou

DATE:16 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2021 at 12:19pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – nomination review application withdrawn – business impact of the COVID-19 pandemic – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 on 3 August 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958.

2. The applicants applied for the visas on 20 January 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for the grant of 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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the related nomination application lodged by the nominator, Alice Food Concepts Pty Ltd (Alice Food Concepts) trading as Flavours of India, being the nomination referred to in cl 187.233(1), was refused by a delegate of the Minister on 25 June 2019 and, as such, there was no approved nomination.

6. The Tribunal received an application for review from the applicants on 22 August 2019. The Tribunal received documents with the application for review including a copy of the delegate’s decision.

7. On 6 October 2020 the Tribunal wrote to the applicants inviting them to appear before the Tribunal on 11 November 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The letter was sent by email to the applicants at the email address provided in connection with the review. The Tribunal received the applicants’ response to the hearing invitation on 11 October 2020 which confirmed that the applicants would take part in the hearing scheduled for 11 November 2020.

8. The applicants appeared before the Tribunal on 11 November 2020 to give evidence and present arguments. At the hearing, the Tribunal received oral evidence and oral submissions from Mr Bernard and Mrs Bernard. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The hearing was held during the COVID‑19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, 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 applicants were given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether there is an approved nomination.

11. At the hearing, Mr Bernard and Mrs Bernard confirmed that they had read the delegate’s decision record. They understand that the delegate made the decision to refuse to grant the visas because Mr Bernard’s employer did not meet the requirements set out in the subregulations for the grant of the visas. The employer did not meet the requirements as it did not provide all of the necessary financial documents to the Department.

12. The Tribunal put information to the applicants pursuant to s 359AA of the Act, being that on 15 July 2019 the Tribunal had received an application for review of the decision made by the delegate on 25 June 2019 to refuse to approve the nomination application made by Alice Food Concepts. On 8 January 2020 the Tribunal received a request from Alice Food Concepts to withdraw its application to the Tribunal for review of the delegate’s decision to refuse to approve the nomination application. On 4 March 2020 the presiding member of the Tribunal (as then constituted) accepted the withdrawal and found that the Tribunal no longer has jurisdiction in the matter. The Tribunal advised that it had not made up its mind about this information, but considered that this information is relevant and potentially adverse to the applicants’ case as, subject to their comments or response, if the Tribunal did accept the information as true, it would mean that the nominator’s application for the nominated position was not approved and there is no pending review before the Tribunal for review of the delegate’s decision to refuse the nomination application. The Tribunal explained that it is a requirement for the grant of the applicant’s Subclass 187 visa that the position specified in the visa application is the subject of an approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that this would be the reason, or a part of the reason, for affirming the decision under review made on 3 August 2019 to refuse to grant the applicant the Subclass 187 visa. The Tribunal went on to explain that if the Tribunal were to find that the position specified in the applicant’s visa application is not the subject of an approved nomination, then this would also mean that the second named applicant and the third named applicant do not meet the requirements for the grant of the visas as they would not be a member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa as required by cl 187.311 of the Regulations and that this would be the reason, or a part of the reason, for affirming the decision under review not to grant the second and third named applicants’ Subclass 187 visas as there is no evidence before the Tribunal that they meet the primary criteria for the visas in their own right.

13. The Tribunal informed the applicants that they did not need to comment on or respond to this information immediately and asked them if they wished to ask for additional time to comment or respond. The applicants requested further time to comment or respond. The Tribunal decided that it was appropriate to adjourn the hearing to allow time for the applicants to comment on or respond to the information. When the hearing resumed, the applicants confirmed that they wished to proceed with the hearing and to provide their response.

14. Mr Bernard told the Tribunal that he wanted to start by explaining the circumstances. He commenced employment with Alice Food Concepts in January 2019. The applications for approval of the position he held and for the Subclass 187 visas were made in January 2019. Six months later, in June 2019, they received an email from the Department stating that the nomination application was refused because the nominator did not provide enough documents. The Department said that the nominator provided no information about the breakdown of the organisational structure of its business or how the nominated position fits in to its business activities and that it had also provided no explanation of the quality of the outputs of the business. The Department said that the main reason for refusing the nomination application was that the requirements in the subregulations were not met.

15. After being notified of the refusal of the nomination application, Mr Bernard and his family were deeply distressed. The nominator advised him to apply to the AAT for review of the decision to refuse the visa applications, which he did. In the meantime, he continued to work for the nominator. However, even though he was still working there, he understood that his application for review of the decision to refuse the Subclass 187 visas would not succeed because the nomination application had not been approved, so he decided to apply for a Subclass 489 visa. He received an invitation to apply for a Subclass 489 visa and he made a visa application on 17 October 2019. He continued to work at Alice Food Concepts until December 2019.

16. From December 2019, Alice Food Concepts suffered a downturn in business and he wasn’t being paid well. From January 2020, the business declined further and he wasn’t being paid at all. The further decline also coincided with the start of the COVID-19 pandemic. Due to lack of pay, he had a financial breakdown. He had to leave Alice Food Concepts and he had no alternative financially except to apply for another job. He got the other job which is in the kitchen at Alice Springs Hospital. After he left, Alice Food Concepts withdrew the application that it made to the AAT for review of the decision to refuse the approval of the nomination application.

17. Mr Bernard told the Tribunal that he is still waiting to hear from the Department about his Subclass 489 visa application which was made around 13 months prior to the hearing. He has continued to work in the kitchen of Alice Springs Hospital. His wife is expecting a child. They already have a six-year-old daughter. Mr Bernard and Mrs Bernard know that their application for the Subclass 187 visas will not be successful. Despite this, they wanted to explain their situation to the Tribunal.

18. Where they are from overseas is in a very bad situation with the COVID-19 pandemic. They are extremely stressed at the thought of having to return there especially since their region has a very high rate of COVID-19 infections. They also have their six-year-old daughter to consider and the impending birth of their baby. The only contact they have had from the Department about the Subclass 489 visa was about documents that are required. They provided all of the documents that they were asked to provide.

19. The documentary evidence is consistent with the oral evidence of Mr Bernard and Mrs Bernard of the circumstances that led to the decision being made to refuse to grant the Subclass 187 visa to Mr Bernard. It is also consistent with Mr Bernard having worked in the business as he described.

20. The Tribunal accepts that the circumstances that led to the refusal of the application for the nomination of the position linked to Mr Bernard’s application for the Subclass 187 visa are entirely beyond the applicants’ control. The withdrawal of the nominator’s application for review by the Tribunal of the decision to refuse the nomination application is also beyond their control. The Tribunal appreciates and considers it understandable that the applicants are upset and extremely distressed by what they believe was the nominator acting in retaliation against Mr Bernard by withdrawing its application to the Tribunal for review of the decision to refuse the nomination application when Mr Bernard was under financial distress and forced to leave the employ of the nominator. However, it remains the case that the application for the nomination of the position related to Mr Bernard’s Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application.

21. As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. The Tribunal acknowledges that the refusal of the application for the visas has placed Mr Bernard and his family in a most unfortunate position, which is not of their own making. However, the Tribunal has no discretion in relation to the requirement that the related nomination application be approved.

22. It is not the role of the Tribunal in this review to provide advice. However, the Tribunal observes that it is open to the applicants to obtain advice from a representative or from other sources should they wish to do so.

    Nomination of a position

23. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.

24. In addition, this 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 reg 1.13A and reg 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.

25. In this case, the applicant applied for a Subclass 187 visa on the basis of the nomination lodged by Alice Food Concepts, in respect of the applicant, being the nomination referred to in cl 187.233(1) of Schedule 2 to the Regulations. That nomination application was refused by a delegate of the Minister on 25 June 2019. As a consequence, on 3 August 2019 the applicant’s Subclass 187 visa was refused by the delegate on the basis that there was no approved nomination.

26. Alice Food Concepts applied to the Tribunal for review of the decision made on 25 June 2019 to refuse the nomination application. However, Alice Food Concepts subsequently made a request to withdraw its application and on 4 March 2020 the presiding member of the Tribunal (as then constituted) accepted the withdrawal and found that the Tribunal no longer has jurisdiction in the matter. This means that the matter has been finally determined and there is no approved nomination as required under cl 187.233(3) of Schedule 2 to the Regulations. As a result, the requirement in cl 187.233(3) of Schedule 2 to the Regulations is not satisfied.

27. Therefore, cl 187.233 is not met.

28. The Tribunal finds that the second named applicant (the applicant’s partner) and the third named applicant (the applicant’s daughter) do not meet cl 187.311, which requires the second named applicant and the third named applicant to be a member of the family unit of a person who holds a Subclass 187 visa. There is no evidence before the Tribunal that establishes that the second named applicant and the third named applicant meet the primary visa criteria.

29. The applicants have 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.

    DECISION

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

    Amanda Ducrou
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.