Dhanapala Mudiyanselage Gedara (Migration)

Dhanapala Mudiyanselage Gedara (Migration) [2020] AATA 5426 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kanchana Pradeepa Palipana Dhanapala Mudiyanselage Gedara
Mr Dinusha Kapukotuwa
Mr Dinidu Bandara Kapukotuwa
Mr Kalindu Bandara Kapukotuwa
CASE NUMBER:  1835324
HOME AFFAIRS REFERENCE(S):          BCC2017/4961216
MEMBER:Susan Reece Jones
DATE:22 December 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 22 December 2020 at 4:45pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Marketing (Business Development) Manager – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cl 186.223

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 21 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 December 2017. 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 (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 Temporary Residence Transition stream, to work in the nominated position of Sales and Marketing (Business Development) Manager (ANZSCO 131112) for GEOWORKS PTY. LTD (the nominator or Geoworks).
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations, which requires that she is the subject of an approved nomination by her employer. The delegate found that Geoworks’ nomination of the applicant was refused by the Department because the nominator did not demonstrate that it had fulfilled the commitments made relating to meeting the training requirements during the period of the nominator’s most recent approval as a standard business sponsor.
The applicants appeared before the Tribunal on 14 August 2020 to give evidence and present arguments.
The applicants were not represented in relation to the review by a registered migration agent.
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 relevant nomination has been approved as required by cl.186.223.
Nomination of a position
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.
In addition, this criterion also requires that:
·the nomination has been approved and has not been subsequently withdrawn(cl.186.223(2) and (3));
·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(cl.186.223(3A));
·the position is still available to the applicant (cl.186.223(4)); and
·the visa application was made no more than six months after the nomination of the position was approved (cl.186.223(5)).
Nominator proceedings
As noted above, the Department refused Geoworks’ nomination of the applicant. Geoworks sought review of that refusal with the Tribunal. On 22 May 2020, the Tribunal wrote to the nominator pursuant to s359(2) of the Migration Act, inviting the nominator to provide further evidence in support of its case. The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.
The Tribunal’s letter to the nominator advised that the Tribunal required updated and current information addressing these criteria. The nominator was advised that the information, in writing, should be received by 5 June 2020.
On 5 June 2020, the Tribunal received a request from the nominator’s representative, registered migration agent Mr Saha Howa of Migrant Solutions Pty Ltd, for an extension of time to provide documents. On 9 June 2020, the Tribunal granted the nominator an extension to 7 July 2020.
On 4 July 2020 the nominator’s representative responded to the Tribunal to advise that the applicant did not provide the representative with any new and contemporaneous documents to submit to the Tribunal in relation to the application as requested by the Tribunal pursuant to s359(2). The representative instead provided the Tribunal with the documents that had been submitted when the application was originally lodged with the Department in 2017.
On behalf of the nominator, the representative wrote to the Tribunal on 13 August 2020 to advise that neither the representative nor the nominator’s director, Mr Chandra Senanayaka, would attend a hearing scheduled with the Tribunal on 14 August 2020. The representative also advised the Tribunal that the nominator consented to the Tribunal making a decision on the documents that are available to the Tribunal.
Following the hearing with the applicant on 14 August 2020, the Tribunal wrote to the nominator on 25 September 2020 to advise of the particulars of the information gathered at the applicant’s associated subclass 186 review hearing. The nominator was advised that:
……..at the hearing, Ms. Gedara advised the Tribunal that she had not been employed by the applicant in the position to which the application relates, since December 2017.
Further, the nominee told the Tribunal at the hearing, that she has not been in contact with the nominator since that time and nor does she intend to return to work at the nominator’s business.
In addition, the nominee wrote to the Tribunal on 22 August 2020 and advised that she is presently working for the Lovitts Group as a production worker and is currently searching for a new job.
The Tribunal’s letter to the nominator further advised that it is a requirement for approval of the nomination that the nominator satisfies Regulation r5.19(3)(d) which requires that the applicant will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. The nominator was advised that if the Tribunal were to rely on this information in making its decision, it would find that the applicant does not satisfy regulation 5.19(3)(d). If it so found, this would be the reason or part of the reason for affirming the decision under review. The nominator was invited to give comments on or respond to the above information in writing by 9 October 2020.
The Tribunal further advised the nominator that if the Tribunal did not receive any comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information. The nominator was also told that the nominator would lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.
The nominator made no request to the Tribunal for an extension of time to submit the requested information. Nor did the Tribunal receive any submissions from the nominator. The nominator did not respond to the Tribunal’s invitation to withdraw the application.
On 23 November 2020, the Tribunal affirmed the decision under review to refuse the nomination.
Applicant proceedings
The Tribunal received oral evidence from the applicant at hearing with the Tribunal on 14 August 2020.
At hearing the applicant told the Tribunal that having known the nominator in Sri Lanka, she relocated to Australia to work for the nominator on 20 May 2015. The applicant advised that she went on maternity leave on 24 November 2015 and returned to work in January 2016. In December 2017 the applicant resigned from the nominator and has had no relationship with the nominator since.
At the hearing, the Tribunal advised and discussed with the applicant that the outcome of this case relies on the review of the nomination by Geoworks being approved and the regulations require that the applicant be employed by the nominator on a full-time basis for at least two years.
The applicant was also advised, and acknowledged to the Tribunal, that the nominator had declined to attend the hearing with the Tribunal and that the nominator had asked that the Tribunal make a decision on the materials provided, being the original submission documentation provided to the Department on 26 December 2017.
The applicant told the Tribunal that she had not been employed by the applicant in the position to which the application relates, since December 2017. In addition, the applicant confirmed to the Tribunal that she has not been in contact with the nominator since that time and nor does she intend to return to work at the nominator’s business.
Additional documentary evidence
At the applicant hearing on 14 August 2020, the applicant was invited to provide any further documentary evidence to the Tribunal for its consideration if she wished to do so.
On 22 August 2020 the applicant submitted the same suite of documents as previously provided by the nominator as part of the original submission of the nomination to the Department. The applicant also noted in her accompanying email to the Tribunal, that her current employment status was that she was employed by the Lovitts Group (not the nominator) as a production worker and is currently searching for a new job.
The applicant in her email also stated that, she hoped that the Tribunal will consider this submission favourably.
The applicant applied for a subclass 186 visa on the basis of a nomination made by the nominator, Geoworks. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which she made the relevant declaration at the time of the visa application, was refused by the Department on 19 October 2018.
The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. The Tribunal notes that at this time (8 November 2018), the applicant had not been employed by the nominator for close to one year.
Consistent with the delegate’s decision, as the nominator failed to provide sufficient verifiable evidence or to demonstrate to the Tribunal that it met the requirements of Training Benchmark provisions, on 23 November 2020 the Tribunal affirmed the decision under review to refuse the nomination.
On 30 November 2020, the Tribunal wrote to the applicants pursuant to s359(A), stating as follows:
At the hearing on 14 August 2020, you were invited to provide any further
documentary evidence to the Tribunal for its consideration if you wished to do so.
On 22 August 2020 you submitted the same suite of documents as previously
provided by the nominator as part of the original submission of the nomination to the
Department.
You also noted in your accompanying email to the Tribunal, that your current
employment status was that you are employed by the Lovitts Group (not the
nominator) as a production worker and are currently searching for a new job.
As the applicant, you applied for a visa on the basis of a nomination made by the
nominator, Geoworks. The employer nomination in which you were identified as the relevant Subclass 457 visa holder and against which you made the relevant declaration at the time of the visa application, was, as noted above, refused by the Department on 19 October 2018.
Consistent with the delegate’s decision, as the nominator failed to provide sufficient
verifiable evidence or to demonstrate to the Tribunal that it met the requirements of
Training Benchmark provisions, on 23 November 2020 the Tribunal affirmed the
decision under review to refuse the nomination.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 14 December 2020. If the
comments or response are in a language other than English, they must be
accompanied by an English translation from an accredited translator. If you cannot provide your written comments or response by 14 December 2020, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 14 December 2020 and you must state the reason why the extension of time is required.
As at the date of decision, the Tribunal has received no response to its letter of 30 November 2020 and nor has the Tribunal received any further submissions from the applicant.
Accordingly, the Tribunal has proceeded to make its decision on the available evidence. It finds that cl.186.223 (2) is not met as there is no approved nomination by Geoworks of the applicant, and therefore cl.186.223 as a whole cannot be met by the applicant.
Therefore, given the finding that cl. 186.223 is not met, the appropriate course is to affirm the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
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.
In relation to the second, third and fourth named applicants, the applicant’s husband and children, the Tribunal must also affirm the decision not to grant them subclass 186 visas, as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria in their own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Susan Reece Jones
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.

[2020] AATA 5426

22 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice