Bhullar (Migration)

[2020] AATA 4112

Bhullar (Migration) [2020] AATA 4112 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amanpreet Kaur Bhullar
Mr Ramandeep Singh
Miss Japnoor Kaur
Master Avinoor Singh Bhullar

CASE NUMBER:  1906593

HOME AFFAIRS REFERENCE(S):          BCC2016/325 BCC2016/3250590

MEMBER:Alison Mercer

DATE:15 September 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 15 September at 12:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination refused– employer did not seek review of the nomination refusal decision –10 year old son has acquired Australian citizenship– not the subject of an approved nomination – Ministerial intervention referral –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359,363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

CASES
Singh v Minister for Immigration and Border Protection [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 Home Affairs on 13 March 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 September 2016. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. 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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she did not have an approved nomination by her Australian employer. The delegate noted that the applicant’s nominating employer, Saamastan Enterprises Pty Ltd, had its nomination refused on 12 February 2019. The delegate found that the applicant therefore did not meet the criteria for a subclass 186 visa in the TRT stream, and had not made any claims or evidence that she met the criteria in either of the other streams. The delegate further found that the second, third and fourth named applicants (the applicant’s spouse and children) were not entitled to subclass 186 visas, as they did not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 20 March 2019, which was accompanied by a copy of the delegate’s decision.

7. On 10 February 2020, the Tribunal wrote to the applicants to invite them to attend a hearing on 24 March 2020.  On 12 March 2020, the applicants returned a hearing response indicating that they would attend the hearing on 24 March 2020.

8. On 20 March 2020, the Tribunal wrote again to the applicants to advise that due to the COVID19 pandemic, the Tribunal would not be hold face to face hearings from 23 March 2020, and thus their hearing on 24 March 2020 would take place by teleconference, unless they had reason to object to this, in which case they were asked to provide their reasons.  On 23 March 2020, the applicant emailed the Tribunal to request that the hearing be rescheduled as she was not comfortable with a telephone hearing.

9. On the same date, the Tribunal wrote to the applicants to advise that the matter would be rescheduled and they would be notified as soon as possible of the new hearing date. The Tribunal noted that the matter was not complex, as the criterion in dispute as to whether the applicant had an approved nomination from her original employer, and that there was no discretion to waive this requirement (for instance, due to compassionate or compelling circumstances).

10. On 18 June 2020, an officer of the Tribunal rang the applicant at the direction of the Presiding Member to offer a MS teams video hearing and to check her capacity to participate in a video hearing. The applicant stated that she would rather have a face to face hearing as she had a young daughter who was always with her which would make it difficult to conduct the hearing via telephone/video.

11. On the same date, the Tribunal wrote to the applicants via email to advise that the Tribunal did not have a set date for resuming in person hearings, and was not deferring hearings indefinitely for that reason. The Tribunal noted that the Presiding Member had identified that the legal criterion in dispute was confined, and that the hearing was anticipated to take 30 to 45 minutes, during which time the applicant was welcome to have her daughter with her if she was unable to make other arrangements for her care within her household. The Tribunal requested that the applicant indicated whether she preferred a telephone or video hearing, setting out the technical requirements of each for the applicant’s information.

12. On 21 June 2020, the applicant wrote to the Tribunal via email to advise that she had so much to talk about her case and felt that face to face would be the best option but if that were not possible, she would prefer a video hearing. The applicant also asked the Tribunal to advise whether she was eligible to obtain a new nomination as she was working in a different restaurant (although due to COVID 19, the business was shut down and would reopen shortly). She noted that if she were eligible to do so (that is, to get a new nomination) then she requested another 2 months to apply for it.

13. On 22 June 2020, the Tribunal advised the applicant via email that it would schedule a video hearing for her and notify her of the hearing date in due course. It also advised that it was the view of the Presiding Member that, legally, a new nomination could not satisfy the requirements for the applicant’s subclass 186 visa, but it noted that the Tribunal was unable to provide migration advice to applicants and it recommended that she seek the advice of a migration agent about her situation if possible.

14. On 7 July 2020, the Tribunal wrote again to the applicants to invite them to attend a video hearing on 28 July 2020. On 10 July 2020, the applicant emailed the Tribunal to request a postponement of the hearing as she had her 1 year old young daughter in her care and the 6 week lockdown in Victoria meant that nobody was able to come to her home for care for her daughter. She therefore requested that the Tribunal reschedule her hearing and give her any date when the lockdown had been lifted.

15. On 13 July 2020, the Tribunal wrote again to the applicants via email to advise her that the Presiding Member had considered the postponement request but declined to reschedule the hearing, noting that it appeared that the applicant’s husband (also a review applicant) would be able to look after their daughter for the anticipated short duration of the hearing.  It further noted that the Tribunal was unable to anticipate when it would be able to resume hearings in person, and could not defer hearings indefinitely for that reason, unless there were compelling reasons to do so. The Tribunal also included a link to its Hearing Practice Directions for hearings conducted during the COVID19 pandemic, for reference.

16. On 15 July 2020, the applicant provided a hearing response indicating that she and her daughter would attend the video hearing on 28 July 2020. She also nominated her sister in law, Kamiljit Kaur, and a former colleague, Mr Bira Kishore, as witnesses.

17. The applicant appeared before the Tribunal by videoconference on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Kamiljit Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

18. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, 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.

19. The applicant told the applicant that she had worked for her employer, Saamastan Enterprises Pty Ltd (which traded as Chawla’s), for over 2 years at the time that she lodged her subclass 186 visa application. At the time that she did so, the business was operating, but during the length of time that it took the Department to process her visa application (which was close to 3 years), the business deteriorated to the point where it closed down in January 2018 and the owner declared bankruptcy. This resulted in the Department refusing its nomination of her in February 2019. In response to the Tribunal’s query, the applicant said that the owner actually opened another restaurant, Pinch of Spice, but did so under a friend’s name, and he continued to employ the applicant as a Cook.  The applicant said that she requested the owner and his friend to take over her nomination for the subclass 186 visa and they agreed to do so. However, they then began hassling the applicant to pay money to secure the nomination, which she could not do. She then found out, when her subclass 186 visa application was refused, that the owners had not lodged a nomination of her on behalf of Pinch of Spice. When she queried this with them, they said that it was because she had not paid them.  The applicant told the Tribunal that she felt that she had been the victim of fraud by her former employer and his friend, and that the Department had also treated her poorly, as they took so long to process her visa application. She noted that during the time it took the Department to process her subclass 186 visa application, several other staff members were granted permanent residence, having made their visa applications around the same time as the applicant. The applicant further noted that she worked for the owners of Chawla and Pinch of Spice for at least 3.5 years as a Cook but was let down by those employers. She told the Tribunal that Pinch of Spice also closed down, in September 2018.

20. The applicant said that at this time, she was pregnant with her second child, her daughter who was born in December 2018. She was preoccupied with this and depressed about her employment and visa situation. In response to the Tribunal’s query, the applicant said that after she ceased working, her husband supported the family through his employment as a car detailer. The applicant said that she had been at home with her daughter until she was offered part time work in another Indian restaurant as a Cook, which she took up. However, after a week or so, this restaurant advised her that it could no longer employ her due to the downturn in business due to the COVID19 pandemic. They had indicated that they would contact her when they were in a position to re-employ her. 

21. The Tribunal put information it held to the applicant pursuant to s.359AA of the Act, being the fact that the Tribunal’s records indicated that the applicant’s employer did not seek review of the nomination refusal decision, which meant that the Department refusal decision remained operative. The Tribunal further advised that the fact that there was no approved nomination of the applicant by her original employer meant that it would have to find that the applicant did not meet cl.186.223, and this would be the reason to affirm the decisions to refuse subclass 186 visas to the applicants. The Tribunal noted that significant legal changes that took place on 18 March 2018 meant that cl.186.223 – for a visa application made before 18 March 2018 – could not be met by a new nomination made after 18 March 2018. The Tribunal asked the applicant whether she wished to respond to or comment on this information immediately or seek further time to do so. The applicant indicated that she wanted to respond at the hearing, and referred the Tribunal to her sister in law, Ms Kaur.

22. Ms Kaur told the Tribunal that she and her family felt very strongly that the applicant had been poorly treated by both her nominating employer (including being bullied and threatened with having the nomination withdrawn) and by the Department (due to the significant processing time taken), and that her visa (and those of her family members) had been refused for reasons that were outside the applicant’s control. They conceded that the applicant could not meet cl.186.223 but sought a chance for the applicant to secure another nomination with another employer, as a Cook, which they felt confident that she would be able to do once the COVID19 restrictions were lifted and the hospitality industry could operate properly again. The applicant told the Tribunal that she tried to get her former employers to seek review of the nomination refusal with the Tribunal but they did not agree to do so.

23. Both Ms Kaur and the applicant noted that the applicant’s son, who had turned 10 earlier this year, had now been granted Australian citizenship. Ms Kaur also emphasised that the family were observant Sikhs and actively involved in volunteering to community causes, including bushfire relief, and that the applicant and her husband had been in Australia for 12 years, having studied and then worked here and paid taxes. The Tribunal discussed with the applicant and Ms Kaur its view that this did not have any bearing on her ability to meet cl.186.223, which rested solely on whether or not she had an approved nomination by her original employer, and gave the Tribunal no discretion to consider why she did not have one (such as factors beyond her control and/or compassionate or compelling circumstances). It further noted that it was expected to make its decision in a timely fashion but agreed to defer its decision by a further 2 weeks to enable them to seek further migration advice, as it was unable to offer any to them, and to make any further submissions, for instance regarding a Ministerial intervention referral request.

24. No further information was received from the applicants.

25. 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

26. 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.

27. In addition, this criterion also requires that:

    ·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.

28. It is not disputed that the nomination of the applicant lodged by her employer, Saamastam Enterprises Pty Ltd, was refused on 12 February 2019. There is no evidence before the Tribunal to indicate the employer sought review of that decision (or attempted to lodge a new nomination) and the applicant explained that although she attempted to persuade her employer to do so, he did not agree to do so.

29. It is a requirement for the Temporary Residence Transition stream (cl.186.223) 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, 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).

30. 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.

31. 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.186.233 (as applicable) unless there is also a review of that decision pending.  

1. Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination, as required by cl.186.223(2) and thus cannot meet cl.186.223 as a whole. She therefore cannot be granted a subclass 186 visa.

2. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

3. The Tribunal must also affirm the decisions to refuse to grant visas to the second, third and fourth named applicants, as it finds that they do not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they met the primary visa criteria in their own right.

   Ministerial intervention

4. The Tribunal notes that the applicant raised several compassionate and/or compelling circumstances relating to her case during the hearing, including the length of residence in Australia of herself and her family, during which time they had paid to study, worked and paid taxes; her family connections in Australia (notably her sister in law); the length of time taken by the Department to process her permanent residence application; her poor treatment by her former nominating employer; and the fact that her 10 year old son has apparently now acquired Australian citizenship. As discussed with the applicant at the hearing, none of these factors can be taken into account to waive the requirements of cl.186.223, as that provision contains no legal discretion. However, the applicants were given additional time after the hearing to provide any additional supporting material about these, and any other circumstances they wished to bring to the Tribunal’s attention. No further material has been received.

5. Section 351 of the Act provides that the Minister for Immigration may intervene to grant a person a visa where the outcome of their review application with the Tribunal is unsuccessful.  This is a personal discretion exercised by the Minister. However, there are guidelines for Ministerial intervention that are set out on the Department’s website:

   >

   They provide the following non-exhaustive examples of the types of unique and exceptional circumstances that can be brought to the Minister’s attention: 

   ·strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

   ·compassionate circumstances regarding an applicant’s age and/or health and/or psychological state, 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;

   ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in an applicant’s case; and/or

   ·where an applicant cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.

6. There is also a list of factors relating to cases where it would be inappropriate to refer them to the Minister.

7. The Tribunal notes that while the applicant has raised factors that may fall within one or more of the above guidelines (in particular, the fact that her son is now apparently an Australian citizen), it has insufficient evidence to be satisfied that it would be appropriate for the Tribunal to refer this matter to the Minister for consideration pursuant to s.351.  However, it remains open for the applicants to do so directly themselves, following receipt of this decision, if they believe that their circumstances fall within the Minister’s guidelines or otherwise represent unique and/or compelling circumstances.

   DECISION

8. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

   Alison Mercer
   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.