Chhikara (Migration)

Chhikara (Migration) [2023] AATA 2152 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Vikas Chhikara
Ms Ruby Ruby
Master Viraaj Chhikara

CASE NUMBER:  2303096
HOME AFFAIRS REFERENCE(S):          BCC2018/889059
MEMBER:Peter Emmerton
DATE:27 June 2023
PLACE OF DECISION:  Adelaide

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

Statement made on 27 June 2023 at 12:32pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – direct entry stream – café or restaurant manager – skill assessment – intention to apply for Subclass 187 and agent’s error in selecting from dropdown list – attempt to rectify after department’s invitation to comment received – department unable to change subclass – no power for tribunal to consider whether applicant satisfies criteria for Subclass 187 – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.234(2)(a), 186.311
CASES
MIMA v Hayman (1999) 90 FCR 120
MIMA v “A” (1999) 91 FCR 435
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 13 February 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 February 2018. 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager, ANZSCO 141111, Skill level 2.
The delegate refused to grant the visas because the applicant did not meet cl 186.234(2)(a) of Schedule 2 to the Regulations because they were not satisfied the first named applicant had provided a suitable skill assessment with his application.’
The applicants appeared before the Tribunal on 27 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ruby Ruby, the primary applicant’s wife and 1 of 2 secondary applicants. For clarity the Tribunal notes that this secondary applicant has been known by both ‘Ruby Ruby’ and/or ‘Ruby’ for the purposes of administration and Departmental forms etc. This was explained to the satisfaction of the Tribunal during 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, or not the requirements of cl 186.234(2)(a) of Schedule 2 to the Regulations are satisfied.
Skills assessment and prior employment
For an applicant in the Direct Entry stream, cl 186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.
For this criterion, the relevant class of exempt persons has been specified in IMMI 17/058.
For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 18/005. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.
In addition, if not an exempt person, the applicant must have been employed in the occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full-time basis and at the level of skill required for the occupation.
At the time of application, the primary visa applicant was not a person in a class of persons specified by the Minister in legislative instrument IMMI 17/058. For clarity he was not specified in the class of exempt persons.
The primary visa applicant did not provide a suitable skills assessment at the time of application as is mandatory to meet cl.186.234(2)(a) unless you are in a group of exempt persons as specified by 186.234(3). This was acknowledged by the primary visa applicant at the hearing.
The Department made contact with the visa applicant on 11 January 2023. Mr Vikas Chhikara was given 28 days to provide evidence of having had his skills assessed as suitable for the occupation by an assessing authority prior to the lodgement of his visa application.
The Department received a written response dated 2 February 2023. In that response to the ‘invitation to comment letter’ the applicant, via his migration agent, provided a range of documents. This included a submission requesting that
‘● Mr Vikas Chhikara’s (and his dependents’) visa application is considered to be an
application for subclass 187 and not subclass 186, and
● his application be processed now (after the successful outcome the AAT appeal)
according to the criteria for the subclass 187 visa.
● The nomination for an RSMS visa has since, following the successful AAT decision
been approved. It was on 18 November 2022. We are attaching the nomination
decision.
● The detailed explanations in this Submission as well as the previous request for the
amendment should suffice as a convincing evidence that the visa application was for a subclass 187 – an RSMS visa, and the mistake is obvious.’
The Tribunal notes that the applicant has in addition, in the forementioned communication with the Department acknowledged at the same time, that a mistake was made at the time of application.
·‘Because of an administrative mistake, an inadvertent error, subclass “186” was
mistakenly selected from the drop list in the on-line application and keyed in instead of subclass “187”.
·In the online visa application system both subclasses (186 and 187) appeared together. Consequently, the online application form lists (through an electronic drop list) both subclasses to select one from them.
·The nomination application has been assessed against the nomination criteria for a
corresponding RSMS visa. The visa application was refused because the employer
nomination had been refused.
·We only realised the mistake when we received the first correspondence from the
Department sent to us by email on 23 July 2019 with an “invitation to comment on
information” following the refusal of the nomination.
·As soon as we realised that the wrong visa subclass was recorded in the visa
application (a wrong subclass keyed in from the drop list) we notified the Department by submitting a Notification of incorrect answers through the Immi Account (see attached). We briefly explained the circumstances of the mistake and asked for the necessary amendment to be made in the file. We are attaching that notification evidence.
·When we received an “Invitation to comment” dated 23 July 2019, following the
Nomination refusal decision, we realised that the mistake with the visa subclass had
not been corrected and we wrote to the Department about the mistake and again asked (through an email dated 29 July 2019) to rectify the mistake on the system.
·That mistake was not corrected and the identification of the visa application as subclass 186 instead of intended subclass 187 continued to appear in documentation that followed.’
The Tribunal acknowledges that the applicant was quite reasonably unaware of the mistake made in relation to the incorrect subclass being selected by his representative at the time of application as the submission was undertaken electronically and therefore not subject to his visual scrutiny. This was confirmed with the applicant during the hearing. The Tribunal is also of the belief that the mistake was clearly made by the representative and was not deliberate but a careless mistake resulting from inattention to the details of the task at hand. Whilst the visa applicants bear the negative outcomes for the mistake, they had no part in it. They had trusted the competency of their migration agent to satisfactorily undertake the application process on their behalf which did not happen. This was clearly a serious administrative failure at the agent’s level and the Tribunal has some sympathy for the applicants plight.
The Tribunal accepts that the Department would not have been able to change the stream of the application, which was implemented at time of application, as per the guidelines and policy under which they must operate. That is despite the fact the applicant’s representative provided a Form 1023, in an attempt to rectify this error. The Tribunal also notes that the representative did not realise his administrative error until the Department alerted him to it when it sought a response from him many years post application. Subsequently any attempt at remediation was only initiated a long time after the original incorrect application.
The Tribunal acknowledges that Regulation 186.234(2)(a) requires the applicant to provide evidence of a suitable skills assessment at the time of application. The skills assessment must clearly show that the applicant had their skills assessed as suitable by the relevant assessing authority no later than the date on which the visa application was made. Skills assessments can only be accepted after the visa application is if the results of the assessment had been obtained prior to the date of application, but not submitted with the application. For clarity the Tribunal notes, the skills assessment must clearly show that the applicant had their skills assessed as suitable by the relevant assessing authority to occupy the approved nominated position.
The visa applicant did not provide a skills assessment from a relevant Australian authority as required for a 186 visa. Subsequently the applicant does not meet cl.186.234(2)(a) and consequently cl.186.234(2) is not met. The Tribunal believes it most probable that the 187 visa stream was the intended visa stream but was not implemented because of the representatives administrative failure.
Does the Tribunal have power to consider whether the applicant satisfies criteria for the visa grant in the 187 visa stream?
In Singh’s case, Rangiah J concluded at [68] that:
‘The Tribunal only has authority to review the decision made by the Minister, and it has no power to consider a visa application other than the one which has been validly made to, and determined by, the Minister.’
His Honour referred to the statement made by Finkelstein J in Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 and subsequently endorsed by Merkel J in Minister for Immigration and Multicultural Affairs v “A” (1999) 91 FCR 435:
‘The Tribunal is in no better position than the Minister as regards a decision under review. It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision. In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision. But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.’
His Honour concluded at [69] that:
‘The Minister could not have granted a visa in the Post-Study Work stream as no application had been made for such a visa.’
Relying on the above cited Federal Court judgment, the Tribunal finds that it does not have power to consider whether the applicant satisfies criteria for the visa grant in the 187 visa stream.
As previously stated, at the time of application the visa applicant was not a person in a class of persons specified by the Minister in legislative instrument IMMI 17/058 for paragraph 186.234(3). As the primary visa applicant, Mr Vikas Chhikara does not meet 186.234(2) and 186.234(3), he does not meet 186.234.
Therefore, cl 186.234 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 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.
Secondary applicants
·Ms Ruby Ruby
·Master Viraaj Chhikara
The Tribunal has determined that the secondary applicants listed above are not members of a family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of having satisfied the primary criteria for a Subclass 186 visa.
The secondary applicants therefore do not meet cl.186.311.
DECISION
The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Peter Emmerton
Member

ATTACHMENT A
186.234
(1)  At the time of application, subclause (2) or (3) applies.
(2)   All of the following apply:
(a) an assessing authority specified by the Minister in an instrument in writing for this subclause, as the assessing authority for the occupation, has assessed the applicant's skills as suitable for the occupation;
(aa) the assessment is not for a Subclass 485 (Temporary Graduate) visa;
(ab) if the assessment specifies a period during which the assessment is valid, and the period does not end more than 3 years after the date of the assessment — the period has not ended;
(ac) if paragraph (ab) does not apply—not more than 3 years have passed since the date of the assessment;
(b) the applicant has been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation.
(3)  The applicant is a person in a class of persons specified by the Minister in an instrument in writing for this subclause.

[2023] AATA 2152

27 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal