Darshandhari (Migration)

[2019] AATA 6266

Darshandhari (Migration) [2019] AATA 6266 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ramita Darshandhari
Mr Shiva Darshandhari

CASE NUMBER:  1909257

HOME AFFAIRS REFERENCE(S):          BCC2017/3484044

MEMBER:Katie Malyon

DATE:18 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2019 at 12:28 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – position no longer available – victim of visa scam – current work arrangements – subject of an approved nomination – unique or exceptional circumstances – exceptional economic benefit – unfair or unreasonable results – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Wijesooriya Patabandi Muhandiramge (Migration) [2019] AATA 3091

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

2. The applicants applied for the visas on 23 September 2017.  At the time of application, Class RN contained only one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for 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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. The first named applicant, Nepalese national Ms Ramita Darshandhari, is seeking the visa in the Direct Entry stream to work in the nominated position of Accountant (General) ANZSCO 221111.  The second named applicant, Mr Shiva Darshandhari, is her partner.

5. The delegate refused to grant the visas on the basis that Ms Darshandhari did not meet cl.187.233(5) of Schedule 2 to the Regulations because the position with her prospective nominator, H&R Block Tax Accountants Geelong (H&R Block Geelong), was no longer available.  A copy of the delegate’s decision was provided to the Tribunal. 

6. The applicants were represented in relation to the review by their registered migration agent, Mr Raju KC of Koala Solutions.

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons set out below, the Tribunal has decided to refer this matter to the Minister pursuant to s.351 of the Act.

   Background

8. Since arriving in Australia in January 2009, Ms Darshandhari has undertaken a range of studies including an Advanced Diploma of Accounting with International Institute of Business & Information Technology, a Bachelor of Commerce (Accounting) at the University of Ballarat and a Master of Business Administration with Homes Institute.  As the holder of successive Student visas, Ms Darshandhari has worked with a number of employers in a range of roles including part-time Bookkeeper and then Accountant.  Following completion of her studies, Ms Darshandhari held a Subclass 485 Temporary Graduate visa and worked as an Accountant with Braza. 

9. In mid-2017, Ms Darshandhari applied on-line for what she thought was a genuine position with the H&R Block Geelong in the role of Accountant.  The position was advertised with recruitment agency Cambridge Consulting based in Melbourne.  Following her interview with Cambridge Consulting’s recruiter Jay, she was successful and H&R Block Geelong lodged a nomination and Ms Darshandhari applied for a Subclass 187 visa.

10. On 12 April 2018, the Department conducted a telephone interview with a Manager of H&R Block Geelong and was advised that no nomination has been lodged in respect of Ms Darshandhari’s permanent residency, or any other overseas workers.  This was later confirmed in writing by the H&R Block Geelong. 

11. Subsequently, the Department wrote to Ms Darshandhari pursuant to s.57 of the Act. The invitation to comment indicated that the Department was assessing her visa application with respect to Public Interest Criterion (PIC) 4020 on the basis of apparent false or misleading information being presented to the Department. 

12. Ms Darshandhari’s current representative responded on her behalf and provided a detailed submission together with a range of documents in support of her claim that she had been the victim of a visa scam and was not party to any unlawful or dishonest misconduct.  Documentation provided included:

    ·multiple email communications between Ms Darshandhari and Jay of Cambridge Consulting; and, 

    ·a notice sent 16 April 2018 to Ms Darshandhari from the Legal Department of Cambridge Consulting in relation to it temporarily ceasing all business activities pending an investigation into potential breaches of the Migration Amendment (Charging For a Migration Outcome) Act 2015 which could impose civil and/or criminal penalties up to $324,000 AUD and/or 2 years of imprisonment to visa applicants, jobseekers, employers or recruitment agencies.

13. As confirmed by the delegate’s decision, the delegate placed ‘significant weight’ on the points made in the representative’s submission and on supporting material provided. Rather than make a finding as to whether Ms Darshandhari met PIC 4040 the delegate proceeded to assess whether the visa application meets other criteria for approval and, as noted above, concluded that the position is not available to the visa applicant such that cl.187.233(5) of the Act was not met.

14. Ms Darshandhari sought review of the delegate’s decision.  This afforded her time to find a genuine employer in need of her skills.

    Hearing

15. On 12 December 2019, Ms Darshandhari appeared before the Tribunal by teleconference from Strathgordon in Tasmania to give evidence and present arguments.  The applicants’ representative also appeared by way of teleconference.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages: however, the Tribunal notes that Ms Darshandhari rarely had occasion to use the interpreter’s services. 

16. Ms Darshandhari told the Tribunal that, because Jay was Australian, she thought she could trust him.  It was only after he persistently refused to respond to her emails about when a formal interview with H&R Block Geelong would be set to discuss her role that she started to get concerned.  He always expressed some excuse about being interstate or overseas.  Copy email communications with Jay from Cambridge Consulting provided to the Tribunal confirm Ms Darshandhari’s oral evidence in this regard.  Questioned as to whether Jay’s continuous excuses for failing to set up an interview with H&R Block rang any alarm bells for her, Ms Darshandhari acknowledged that alarm bells were ringing but, because he was Australian, she genuinely believed whatever he said.  She told the Tribunal that, eventually, she called H&R Block directly and that’s when she found out it was all a scam.  This was when the Department contacted her.

17. In relation to her current work, Ms Darshandhari told the Tribunal that she is working as an Accountant with Pedder Wilderness Lodge (Pedder Wilderness Lodge) in Tasmania.  The Pedder Wilderness Lodge sits on Lake Pedder within the South West National Park which part of Tasmania’s UNESCO Wilderness World Heritage Area.[1] Asked by the Tribunal as to whether Pedder Wilderness Lodge has made application to the Department nominating her for either a Subclass 482 visa or a Subclass 187 visa, Ms Darshandhari’s representative informed of the Tribunal that no such nomination has been lodged as yet. He added that they were still in the process of exploring visa options for Ms Darshandhari, including the possibility of having to leave Australia temporarily to lodge an offshore application (for either a Subclass 482 visa or a Subclass 187 visa) arising from the impact of s.48 of the Act which precludes an on-shore visa application except in limited circumstances not relevant for the purposes of this case.

    [1] >

    The Tribunal observed that, based on available evidence, it has no discretion and must affirm the delegate’s decision to refuse to Subclass 187 visa.  Ms Darshandhari acknowledged the Tribunal’s observations in this regard.  She added that she really wants to stay in Australia and continue working in her occupation as an Accountant.  Ms Darshandhari said she genuinely applied for what she thought was a genuine vacancy with H&R Block Geelong but now feels she has been a victim of a visa scam.  

18. The Tribunal found Ms Darshandhari to be a credible witness. She gave her evidence honestly.  The Tribunal found her evidence to be reliable and corroborated by the objective circumstances.

19. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

20. Clause 187.233 of Schedule 2 to the Regulations 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 must be the subject of an application for approval of a nomination in the Direct Entry stream which is located in regional Australia.  The position must be the one that was the subject of the declaration made by the visa applicant as part of their Subclass 187 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.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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 r.1.13A and r.1.13B of the Regulations), or it is reasonable to disregard any such information;

    ·the position is still available to the applicant (emphasis added); and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

22. Having reviewed available evidence, the Tribunal is satisfied that the position of Accountant with H&R Block Geelong is not still available to Ms Darshandhari. It concurs with the delegate that, as such, she does not meet the criteria in cl.187.233(5) of the Regulations. Therefore, cl.187.233 of Schedule 2 to the Regulations is not met.

23. Ms Darshandhari has 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 stream.  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.

24. Since Ms Darshandhari does not satisfy the primary criteria for grant of a Subclass 187 visa, her partner, Mr Darshandhari, cannot satisfy the secondary criteria for grant of the visa.  There is no evidence before the Tribunal to indicate that Mr Darshandhari meets the primary requirements for grant of the visa.

    Is this an appropriate case to refer to the Minister?

25. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s.351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act.

26. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

27. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[2]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which may be unique or exceptional in this case include, relevantly:

    ·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

    ·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 a particular case (emphasis added).

    [2] >

    The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances.  The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention. 

28. Neither the applicants nor their representative made any submissions addressing whether this is an appropriate case to refer to the Minister.  The factors which cumulatively engage the Tribunal’s consideration as to whether this is an appropriate case to refer to the Minister are as follows:

    ·the applicants have lived in Australia for 11 years during which time they have contributed to the Australian economy and wider community through Ms Darshandhari’s studies here as well as the couple’s gainful employment;

    ·Ms Darshandhari, in particular, has undertaken all of her tertiary education in Australia including a Bachelor of Commerce (Accounting) degree as well as a Master of Business Administration degree;

    ·Ms Darshandhari was approved for a Subclass 485 visa on a 24 March 2016 on the basis of a favourable skill assessment from a relevant assessing authority for her occupation of Accountant 221111;

    ·the occupation of Accountant ANZSCO 221111 is on a number of State/Territory Subclass 190 Priority Skilled Occupation Lists including, relevantly, that of Tasmania[3] and the list of occupations for the Subclass 491 Skilled Work Regional (Provisional) visa;

    ·Ms Darshandhari has been, and is currently, employed as an Accountant;

    ·although Ms Darshandhari’s current employer Pedder Wilderness Lodge has not, as at the date of this decision, lodged a nomination application in respect of Ms Darshandhari for either a Subclass 482 visa or a Subclass 187 visa, the Tribunal has reviewed Departmental records and established that it successfully lodged nomination applications for employees who have secured permanent residence based on their employment by Pedder Wilderness Lodge; and,

    ·as confirmed by the (differently constituted) Tribunal’s decision in Wijesooriya Patabandi Muhandiramge (Migration) [2019] AATA 3091 (9 May 2019), Ms Darshandhari is not the only innocent victim of a visa scam perpetrated by Cambridge Consulting.

    [3]

29. In the opinion of the Tribunal, the strict application of the law in the circumstances of this case leads to an unfortunate outcome.  Refusal of Ms Darshandhari’s Subclass 187 visa application would deprive Pedder Wilderness Lodge of its current Accountant and termination of her employment, in what is essentially a remote part of Tasmania, may well have adverse consequences for the business if it is unable to replace her within a reasonably short timeframe. 

30. Furthermore, given the cost to the applicants, and vicariously to the Australian community by virtue of dealing with any further possible appeals, Bridging visa applications and responses, it may well be a reasonable consideration for the Minister to allow the applicants, in these circumstances, to remain in Australia to pursue application for a Subclass 482 visa or a Subclass 187 visa nominated by Pedder Wilderness Lodge.  That, however, would be a matter for the Minister to determine.

31. The Tribunal has considered the applicants’ case and the Ministerial guidelines relating to the discretionary power of referring the matter to the Minister.  The Tribunal considers that the applicants’ contribution to the Australian community and the benefit that would result from them remaining in Australia are circumstances which could bring their case within the Minister’s guidelines for consideration having regard to the matters referred to above. 

32. Accordingly, the Tribunal will refer the matter to the Department for the Minister’s consideration.  The applicants may wish to lodge with the Department supporting documentation, in particular, from Pedder Wilderness Lodge as well as Mr Darshandhari’s employer addressing the unique and exceptional circumstances of this case.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.

    oOOo