Dhillon (Migration)

[2020] AATA 2543

Dhillon (Migration) [2020] AATA 2543 (3 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Iqbal Singh Dhillon

CASE NUMBER:  1812645

HOME AFFAIRS REFERENCE(S):          BCC2016/2778074

MEMBER:Mark Bishop

DATE:3 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 03 April 2020 at 11:32am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café or Restaurant Manager – no approved nomination – request for Ministerial Intervention referral – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cl 187.233

CASES

Mohammed v MIBP [2017] FCCA 2356

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 August 2016. 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 (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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Café or Restaurant Manager ANZSCO 141111.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 26 March 2018 the nomination application lodged by Casa Diverso Pty Ltd nominating the Iqbal Singh Dhillon (the applicant in this review application was refused).

6. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator in Case number 1810052.

7. The applicant was represented in relation to the review by his registered Migration Agent (MA).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has an approved nominating sponsor and position in which to be engaged in employment.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

11. 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); 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.

12. On 17 March 2020 in related case number 1810052 an application by Casa Diverso Pty Ltd as nominator the Tribunal determined the nominator did not meet the requirements of r.5.19(4) and affirmed the decision under review to refused the nomination.

13. The Tribunal heard the applicant’s review application in this review application at the same time as related case number 1810052.

14. The material matter for the Tribunal to determine is whether the applicant has an approved nominating sponsor and position. Given the decision of the Tribunal in Case number 1810052 the applicant does not have an approved nominating sponsor and position.

15. On 19 March 2020 the Tribunal forwarded to the applicant correspondence under s.359(2)/s.359A of the Act. The Tribunal advised as follows:

    ·In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    ·The particulars of the information are:

    oThe application for approval of the nominated position made by Casa Diverso Pty Ltd (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision with the AAT, but on 16 March 2020 the Tribunal affirmed the decision of the delegate.

    oThis information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

    oIf we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

    oYou are invited to give comments on or respond to the above information in writing.

16. On 2 April 2020 the applicant responded to the invitation to comment outlined above in the following terms:

    ·Outcome summary of relevant background Departmental and Tribunal decisions in this matter;

    ·Need for the applicant to satisfy cl.187.233 of Schedule 2 of the Migration regulations;

    ·Submission that outlined the following:

    oThe Tribunal advised both the nominator in related case number 1810052 and the nominee in this review application the hearing was to be heard jointly;

    oThe nominee gave evidence to the Tribunal in the joint hearing of related case number 1810052 and the current review application;

    oThe review applicant seeks a further opportunity to give evidence to the Tribunal;

    oThe nominee has been an exemplary visa holder;

    oThe nominee seeks the Tribunal refer the matter to the Minister for Intervention.

17. On 27 November 2019 the Tribunal wrote to the review applicant in the following terms:

    ·I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.

    ·We have considered the material before us but we are unable to make a favourable decision on this information alone.

    ·You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We have arranged a hearing for:

    ·We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 9 March 2020.

18. The applicant in this review application made a lengthy written submission to the Tribunal that addressed the requirements for a Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa. It is outlined at page 10 of the written submission (Tf: 74). The nominee submitted he satisfied the criteria for the grant of a RSMS visa.

19. The applicant gave extensive evidence to the Tribunal.

20. The applicant has now provided a written response to the letter outlined in paragraph 15 above.

21. The applicant has not provided any information or a document to the Tribunal that shows that he has an approved nominating sponsored.

22. There is no information before the Tribunal that the applicant has an approved nominating sponsor and position.

23. Therefore, cl.187.233 is not met.

    REQUEST FOR MINISTERIAL INTERVENTION

24. S.351(1) of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    Referral to the Minister by the Tribunal

25. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,[1] and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.

    [1] Mohammed v MIBP [2017] FCCA 2356 at [29].

26. The power under s351(1) may only be exercised by the Minister personally.[2] Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

    [2] S351(3)

27. A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet the Ministerial guidelines for referral, the Department will finalise the case according to the guidelines.

    Relevant extracts from the Direction

28. Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.

29. The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

    Minister’s guidelines on ministerial powers (s351, s417, s501J)

30. The guidelines list various scenarios which are inappropriate for the Minister to consider and will not be referred to the Minister.

    Cases which may be referred to the Minister for possible consideration of the use of his/her intervention powers

31. The Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. The Minister’s guidelines list circumstances which may be unique or exceptional.  The Minister may consider intervening in case where the circumstances do not fall within the unique or exceptional circumstances described if the Minister considers it to be in the public interest.

32. The applicant has not provided any information to the Tribunal that suggests “that there are facts or circumstances warranting further investigation by the Department before referral to the Minister”

33. The Tribunal has considered all matters in this review application.

34. At its heart is the repeated failure of the applicant to provide evidence that shows that he has an approved nominating sponsor. As a matter of fact it is not possible for the applicant to provide that evidence because the Tribunal on 17 March 2020 in related case number 1810052 an application by Casa Diverso Pty Ltd as nominator the Tribunal determined the nominator did not meet the requirements of r.5.19(4) and affirmed the decision under review to refused the nomination.

    CONCLUDING PARAGRAPH (ALL ISSUES)

35. 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.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Mark Bishop
    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

    (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.