Dhanoa (Migration)

[2023] AATA 1525

Dhanoa (Migration) [2023] AATA 1525 (13 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simarjit Kaur Dhanoa
Mr Kamaljeet Singh Gill
Ms Ramneet Gill
Master Angadveer Singh Gill

REPRESENTATIVE:  Mr Ravinder Singh (MARN: 1678111)

CASE NUMBER:  1917224

HOME AFFAIRS REFERENCE(S):          BCC2017/4640157

MEMBER:Mary Sheargold

DATE:13 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2023 at 5:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – no response to s.359A invitation – Australian citizen child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359C, 360, 363
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 December 2017. At the time of application, Class RN contained 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 (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. 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 Cook, ANZSCO 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by Strathmore Hill Pty Ltd for the position of Cook was not approved.

6. The Tribunal as presently constituted took carriage of this application after the applicants had attended a hearing before Member Plain on 4 November 2022 where they gave evidence and presented arguments. The Tribunal as previously constituted also received oral evidence from Mr Matthew Finager, who is the first named applicant’s current employer.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

8. Unfortunately, Member Plain’s appointment to the Tribunal expired before a decision on this application was prepared and finalised.  The applicants had their application listed and heard in a combined application with the nominator, Strathmore Hill Pty Ltd, but no representative from Strathmore Hill Pty Ltd attended the hearing.  It was clear on the evidence provided prior to the hearing that Strathmore Hill Pty Ltd had ceased operating the business that employed Mrs Dhanoa almost a year before the delegate’s decision was made in relation to these visa applications. 

9. The director of Strathmore Hill Pty Ltd, Nareen Cullen, provided the Tribunal with statutory declarations outlining Mrs Dhanoa’s employment history, and the first named applicant provided an account of her employment history to the Tribunal prior to the hearing.  Member Plain did not dismiss Strathmore Hill Pty Ltd’s application for non-appearance, nor did she make a decision on that application prior to the expiration of her appointment.  Having carefully considered the transcript from the hearing conducted by Member Plain, the Tribunal has had little choice but to re-list both matters for hearing prior to a final determination being made.

10. Relevantly, the Tribunal notes that despite offering Strathmore Hill Pty Ltd several opportunities to withdraw its application, it did not do so, and so the Tribunal was left with no choice but to list the application for a further hearing.  As anticipated, no representative from Strathmore Hill Pty Ltd attended the hearing at the date and time requested, and so the Tribunal proceeded to finalise a decision affirming the delegate’s decision to refuse to approve the nomination application.

11. After that decision was made, on 29 March 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act.  The Tribunal’s letter invited the applicants to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook made by Strathmore Hill Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the nominator had applied to the Tribunal for review of that decision, but the Tribunal had recently affirmed the delegate’s decision.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 12 April 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and prepare arguments. 

13. The applicants did not provide the comments within the prescribed period and no extension was sought nor was one granted.  In these circumstances, s.359C applies, and pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

14. On 13 April 2023, the Tribunal wrote to the applicants noting that it had not received any comments or response to its invitation dated 29 March 2023, and advised the applicants that the hearing listed for 26 April 2023, to which they had been separately invited, had been cancelled due to the effect of ss.360(3) and 363A of the Act.

15. The Tribunal notes that this matter was listed for hearing, anticipating the applicants’ desire to appear again having considered the evidence regarding the employment history of the first named applicant and the fact that the third named applicant has attained Australian citizenship in the period since the delegate’s refusal but before the Tribunal’s decision has been made.  The Tribunal has taken into account all available evidence in reaching its findings, including the transcript from the hearing before Member Plain from 4 November 2022.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the first named applicant meets the requirements of cl.187.233(3) of Schedule 2 to the Regulation.

    Nomination of a position

18. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current 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.

19. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 reg 1.13A and reg 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.

20. The nominator’s nomination application was refused by the Department, and the Tribunal recently affirmed the Department’s decision. The applicant failed to provide any response to, or comments on, this information. As outlined above, it is plain that the applicants accept the nominator ceased operating its business in August 2018 and the first named applicant has not worked for Strathmore Hill Pty Ltd since that time. At the hearing held by Member Plain, the applicants were informed that the Tribunal did not have any discretion in this respect, and the success of the appeal would rise and fall on the outcome of the nomination application. As the nomination application for the position to which the first named applicant’s Subclass 187 visa relates has not been approved, it follows that the first named applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

21. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

22. In this matter, the Tribunal notes that because there is no approved nomination for the first named applicant’s visa application, she cannot overcome her current inability to meet cl.187.233(3) in relation to her application.  The nomination by Strathmore Hill Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

23. Therefore, cl 187.233(3) is not met.

24. The applicant 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 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.

25. Pursuant to cl.187.311, the Tribunal must also affirm the decisions to refuse to grant Subclass 187 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary criteria in their own right.

    Referral to the Minister pursuant to s.351 of the Act

26. At the hearing held in November 2022, the first named applicant alerted the Tribunal to the fact her daughter had attained Australian citizenship.  Evidence of her Australian passport was provided to the Tribunal prior to the hearing.  Although the Tribunal as previously constituted did not entertain a discussion with the applicants or their representative regarding a possible referral to the Minister pursuant to s.351 of the Act, the Tribunal is prepared to infer from Mrs Dhanoa’s appeal in raising her daughter’s citizenship status a request for such a referral.

27. Section 351 gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The ministerial guidelines identify unique or exceptional circumstances that may be brought to the Minister’s attention.  The first of these circumstances is ‘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’. 

28. The third named applicant has, by virtue of being born in Melbourne and having spent her whole life in Australia, attained Australian citizenship.  Departmental records confirm she has left Australia briefly 3 times in her life.  Born in 2009, she is now a teenager who has completed all her schooling to date in Australia.  It is reasonable to infer from the circumstances that to remove the third named applicant’s family from her, or to leave her family with no choice but to take her back to India with them, would result in serious, ongoing and irreversible harm and continuing hardship to her.  The Tribunal notes that, if they wish to do so, the applicants may be in a position to furnish the Minister with more specific details in this regard.

29. The Tribunal has considered the correspondence from the first named applicant received today after being advised that they had lost their entitlement to appear before the Tribunal for failing to respond to the Tribunal’s invitation under s.359A of the Act.  Having considered that submission, the Tribunal is cognisant that these applicants have lived and worked in regional Victoria for 7 years, that they continue to do so, and that the first named applicant’s current employer has indicated a willingness to sponsor the family for a permanent residency visa. 

30. While the Tribunal does not speculate on the prospects of such an application being made or being approved, it is a notable consideration given the publicly accepted and acknowledged fundamental skills shortage being experienced in Australia, and the paucity of qualified workers prepared to live in regional centres.  The first named applicant has highlighted her family’s commitment to the Bendigo community during Covid, including the welfare and voluntary work provided to the Sikh community in those difficult times.

31. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Mary Sheargold
    Member

    
    
    

    ATTACHMENT A

    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.