Den Hertog (Migration)
[2017] AATA 2447
•6 October 2017
Den Hertog (Migration) [2017] AATA 2447 (6 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Paul Den Hertog
Ms Yolanda Shanti Rosaria
Mr Omar Ghani Den Hertog
Mr Harun Maulana Talha Den Hertog
Ms Mariam Hanipah Den HertogCASE NUMBER: 1610718
DIBP REFERENCE(S): BCC2015/1822630
MEMBER:Danica Buljan
DATE:6 October 2017
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 06 October 2017 at 2:49pm
CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream - Nomination withdrawn by sponsor – Sponsor withdrew application due to insolvency – Subsequent employment obtained – Original nomination not in place at time of decision – Estoppel – No discretion to grant estoppel – Ministerial Intervention – Insufficient grounds to warrant Ministerial Intervention
LEGISLATION
Migration Act 1958, s 65, 351, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cl 187, 223, cl 187.233, 187.311
CASES
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration and Citizenship v You [2008] FCA 241
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22
Minister for Immigration and Ethnic Affairs v Polat(1995) 57 FCR 98
Haque v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FMCA 55
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 71 FCR 386
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 Immigration on 29 June 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied to the Department of Immigration for the visas on 25 June 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the first-named applicant (‘the applicant’) is seeking the visa in the Direct Entry stream. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visas on the basis that the applicant did not meet clause 187.233 of Schedule 2 to the Regulations. This was because the applicant’s nominator, Choice Industrial Training Pty Ltd, withdrew the associated nomination on 28 April 2016.
The applicants lodged an application for review with the Tribunal on 15 July 2016, and a copy of the primary decision was included with this application.[1] The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[1] AAT Case file 1610718 (T1), f.1-3
[2] D1 - Departmental file BCC2015/1822630, folio numbered 1-276
[3] AAT Case file 1610718, folio numbered 1-86
The applicants appeared before the Tribunal on 11 September 2017 to give evidence and present arguments. They were self-represented in relation to the application for review.
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 Minister has approved the relevant nomination for the purposes of clause 187.233 of the Regulations.
Nomination of a position
Specifically, for applicants in the Direct Entry stream clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under subregulation 5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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: subclause 187.233(1).
In addition, this criterion also requires that:
·The person who will employ the applicant is the person who made nomination: subclause 187.233(2);
·The nomination has been approved and has not been subsequently withdrawn: subclauses 187.233(3) and (4);
·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: subclause 187.233(4A);
·The position is still available to the applicant: subclause 187.233(5); and
·The visa application was made no more than six months after the nomination of the position was approved: subclause 187.233(6).
According to the primary decision record the applicant provided with the application for review, the nomination that was linked to the applicant’s visa application and lodged by Choice Industrial Training Pty Ltd was withdrawn on 28 April 2016.[4] The Tribunal notes that the applicant confirmed this at the Tribunal hearing.
[4] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Notably, in Singh v Minister for Immigration and Border Protection[5] (‘Singh’s case’) the Full Federal Court considered the wording of clause 187.233 and held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court held that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application.
[5] [2017] FCAFC 105
As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the ‘position’ referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval.
As a consequence, the decision in Singh’s case means that where the Department refuses a nomination, an applicant will not meet the requirements of clause 186.233 unless the original decision to refuse the nomination is set aside by the Tribunal on review.
In this case, the applicant did not suggest that Choice Industrial Training Pty Ltd had lodged an application for review with the Tribunal. Rather, he explained that Choice Industrial Training Pty Ltd had withdrawn its nomination application because it had become “bankrupt”, or insolvent.[6]
[6] T1, f.57 reverse & 84 reverse
As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Although the Tribunal has had regard to the applicant’s evidence that he has obtained employment with another Australian business, namely, Tap Slots Pty Ltd, it notes that this does not alter the requirements of clause 187.233. This is because the wording of this provision, and the decision in Singh’s case mean that the Tribunal must find that the Minister has approved the nomination lodged by Choice Industrial Training Pty Ltd, which was identified in the applicant’s visa application, before it can find that he meets the requirements of clause 187.233.
As a result, given the evidence before it that withdrew its nomination application before it was approved, the Tribunal finds that the Minister has not approved the nomination to which the applicant’s visa application relates. Therefore, the Tribunal finds that the applicant does not meet the requirements of subclause 187.233(3) and, consequently, clause 187.233 at the time of decision.
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. Although no specific claims have been made in respect of the other visa streams, given the evidence before it, the Tribunal has considered whether the applicant might meet the relevant criteria in either the Temporary Residence Transition stream or the Agreement stream.
Specifically, clause 187.223 applies to applicants seeking a subclass 187 visa in the Temporary Residence Transition stream. Paragraph 187.223(1)(a) requires the position to be in respect of a position that is nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3). There is little in the evidence before the Tribunal to suggest that this is the case and the applicant did not suggest otherwise at the hearing. Therefore, the Tribunal is satisfied that the applicant does not meet the requirements of paragraph 187.223(1)(a).
Correspondingly, paragraph 187.223(1)(b) requires the position to be in respect of an applicant who is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa. Notably, the applicant gave oral evidence that he has never been granted a subclass 457 visa and there is little in the evidence before the Tribunal to suggest otherwise. Accordingly, the Tribunal finds that he also does not meet the requirements of paragraph 187.223(1)(b).
As a result, the Tribunal finds that the applicant does not meet the requirements of paragraphs 187.223(1)(a) and (b), subclause 187.223(1) and clause 187.223 under the Temporary Residence Transition Stream at the time of its decision.
Clause 187.242 applies to applicants seeking a subclass 187 visa in the Agreement stream. Paragraph 187.242(1)(a) requires the position to which the application relates to be a position nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party.
The applicant did not claim this was the case at the hearing and there is little in the evidence before the Tribunal to indicate that Choice Industrial Training Pty Ltd has entered into a labour agreement.
Consequently, the Tribunal also finds that the applicant does not meet the requirements of paragraph 187.242(1)(a), subclause 187.242(1) and clause 187.242 under the Agreement stream at the time of its decision.
Accordingly, given the above findings, the Tribunal finds that the applicant does not meet the requirements in the Direct Entry stream, the Temporary Residence Transition Stream or the Agreement Stream at the time of decision, and the visa application must fail.
To meet clause 187.311 the applicant's spouse and children, the second, third, fourth and fifth-named applicants (the 'secondary applicants'), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 187 visa.
As the applicant does not satisfy the primary criteria for a subclass 187 visa, the Tribunal finds that the secondary applicants do not meet the requirements of clause 187.311 and, therefore, the criteria for a subclass 187 visa.
Other Matters
The applicant provided to the Tribunal lengthy written submissions (dated 1 May 2017[7] and 3 September 2017[8]) requesting that the Tribunal reconsider the delegate’s decision to refuse his visa application given his skills, qualifications and experience in the information technology sector.
[7] T1, f.44-59
[8] T1, f.71-85
In addition, the applicant outlined the circumstances surrounding his employment with Choice Industrial Training Pty Ltd, in terms of how poorly he had been treated and the consequential impact this had upon his immigration status, including the fact that this company subsequently became insolvent.
The applicant also alleged that departmental delays in the processing of the employer nomination and visa applications meant that Choice Industrial Training Pty Ltd became insolvent before his visa application was finalised, to his detriment.
In support of these submissions the applicant submitted copies of the ‘Genuine Need’ declaration (dated 15 May 2015[9]) Choice Industrial Training Pty Ltd had provided to the Department, which he claimed had led him to believe that there was a genuine position for him in this business.
[9] T1, f.71-72 reverse
The applicant also submitted a skills assessment[10] from the Australian Computer Society confirming his skills as a ‘Web Developer’ (ANZSCO Code 261212), two employment references[11] from a former colleague at Choice Industrial Training Pty Ltd regarding his skills as a software developer.
[10] T1, f.44 & 72-73 reverse
[11] T1, f.55 reverse -55 & 82-83 reverse
In addition, the applicant provided evidence of his current employment with Tap Slots Pty Ltd as a software developer in the form of an employment contract (dated 15 September 2016[12]) and a reference (dated 1 February 2017[13]) from Mr J. Daniels, the director of Tap Slots Pty Ltd, who attested to the difficulties this company had in recruiting suitable ActionScript 3 / Air Game developers.
[12] T1, f.46-54 & 74 reverse - 82 reverse
[13] T1, f.45 & 73
The Tribunal observes that, in effect, the applicant has argued that either the principles of ‘estoppel’ should be applied to his case, or the Tribunal should waive the mandatory requirements for the grant of the visa. He also indicated that he would like his case to be referred to the Minister under section 351 of the Act.
(a)The ‘Estoppel’ Claims:
In considering the applicant’s case the Tribunal acknowledges his understandable dismay regarding the time it took the Department to process his visa application and the subsequent failure of his application for permanent residence in Australia.
However, even if the Tribunal accepts the applicant’s arguments regarding the effects of any processing delays upon the success of his, these submissions, in effect, relate to the processes put in place by the Department and issues of estoppel, rather than whether the applicant actually meets clause 187.233. As such, they run counter to the general principle that misleading or incorrect advice by the Department and/or its officers does not give rise to an estoppel, or exempt an applicant from complying with statutory requirements.[14] The Tribunal is satisfied that this principle is equally applicable in circumstances where the departmental processing of a visa application falls outside publicised time standards
[14] Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22 at [12]; Minister for Immigration and Ethnic Affairs v Polat(1995) 57 FCR 98 (Davies, Whitlam and Branson JJ); Haque v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FMCA 55; Wang v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 71 FCR 386
In addition, as noted above, the wording of clause 187.223, confirmed by the judgment in Singh’s case, means that the Tribunal has no discretion to find in the applicant's favour on the basis of the circumstances he has put forward. As a result, the Tribunal has no alternative but to affirm the decision under review.
(b)Ministerial Intervention under Section 351 of the Act:
Although the applicant has not formally requested that the Tribunal refer his case to the Department for consideration by the Minister pursuant to section 351 of the Act, it has considered whether the circumstances of this case would mean it is appropriate to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.
The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.
However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned, as is the case here. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.
In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.
As noted previously, the applicant provided the Tribunal with copies of the primary decision record that set out the basis for the refusal of his visa application when he lodged his application for review. As a result, the applicant has been aware of the basis for the refusal of his visa application for approximately 15 months.
Nevertheless, the applicant presented to the Tribunal as a reasonably articulate and personable individual. The Tribunal also found him to be a frank and credible witness. It accepts that as a temporary visa holder the applicant found himself in a vulnerable position with his sponsoring employer, which finding itself in financial difficulties, became insolvent and unable to continue with the nomination. As such, this case highlights some of the weaknesses at play between the interaction of Australia’s industrial relations system and the relevant immigration legislation applicable to temporary visa holders.
Accordingly, the Tribunal does not seek to dismiss or diminish the concerns the applicants expressed at the hearing about these matters, or how they have affected the applicants at a financial, social and emotional level. The Tribunal considers that these claims do raise some compassionate grounds. It also notes that the evidence before it indicates that there is some potential benefit to Australia for the applicant to remain in his current employment with Tap Slots Pty Ltd. This is especially so given that the occupation of ‘Web Developer’ (ANZSCO Code 261212) remains on the departmental ‘Short-term Skilled Occupation List’.[15] Notably, the applicant’s information technology skills meant he was able to find alternative employment in this field relatively quickly, namely, within 3 months of being notified that his visa application had been refused.
[15] IMMI 17/060, ‘Specification of Occupations—Subclass 457 Visa’, 28 June 2017
As discussed with the applicant at the hearing, the Tribunal notes that an accredited immigration specialist legal practitioner would be best placed to assist the applicant to explore his immigration options, or to expand upon these matters for the purposes of any application for Ministerial intervention. The Tribunal can only express the hope that he proactively seeks to engage such professional advice.
On the other hand, the wording of clause 187.233, which is reinforced by the Full Federal Court judgment in Singh’s case, is an intended consequence of the legislation, and the Tribunal is bound by the this decision. The Tribunal also considers that the emotional, financial and/or social impact upon the applicants of the decision to refuse the subclass 187 visa applications needs to be balanced against the evidence which indicates that they do not meet the criteria for this visa subclass.
As a consequence, the Tribunal recognises that whilst there may be scope to argue that Australia stands to receive an economic or other benefit from permitting the applicant to remain permanently in Australia, the Tribunal finds that the evidence currently before it is not sufficient to establish a case that warrants referral to the Minister.
Accordingly, on the basis of the evidence that has been provided to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.
Nevertheless, the Tribunal notes that the applicants can still make a request directly to the Minister with additional evidence to support their claims for Ministerial intervention under section 351 of the Act.
CONCLUSION
Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Danica Buljan
Member
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