Dimbulavitiye Kankanamalage (Migration)

[2021] AATA 128

Dimbulavitiye Kankanamalage (Migration) [2021] AATA 128 (14 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Disna Crishanthi Dimbulavitiye Kankanamalage
Mr Sujeewa Prasad Kamburawala Vithanage

CASE NUMBER:  1921818

HOME AFFAIRS REFERENCE(S):          BCC2017/4185970

MEMBER:Mary Sheargold

DATE:14 January 2021

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 14 January 2021 at 10:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hair or Beauty Salon Manager – subject of an approved nomination – nomination application withdrawn – decision under review affirmed

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

CASES
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 9 November 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 Hair or Beauty Salon Manager (ANZSCO 142114).

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 Lancaster Enterprise Pty Ltd for the position of Hair or Beauty Salon Manager was not approved.

6. The applicants appeared before the Tribunal by telephone on 9 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

7. The applicants were represented in relation to the review by their registered migration agent, Mr Ajay Bansal.  Mr Bansal attended the telephone hearing.  Relevantly, the Tribunal notes that Mr Bansal was not the agent who assisted the applicants with the preparation of this application.

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 there is an approved nomination.

   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 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.

12. On 11 November 2020, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them 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 Hair or Beauty Salon Manager by Lancaster Enterprise Pty Ltd had been refused by a delegate of the Minister of Immigration, that the delegate’s decision had been appealed to the Tribunal, but that Lancaster Enterprise Pty Ltd had withdrawn the appeal.  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.

13. 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 25 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  

14. On 12 November 2020, the applicants’ representative at that time, Mr Duy San (whom the Tribunal notes also was not the representative who assisted the applicants with their visa application) wrote to the Tribunal requesting an extension of time to 2 December 2020 to respond to the Tribunal’s letter, and the Tribunal granted this extension by letter dated 12 November 2020.

15. On 30 November 2020, the Tribunal received an email from Mr Bansal enclosing a submission by the first named applicant, also dated 30 November 2020. The submission states that the applicants arrived in Australia for the first time on 16 January 2013, and that the first named applicant completed a Master of TESOL at La Trobe University in June 2015.  She then completed a Diploma of Salon Management and worked as the Salon Manager with Inroe Hair and Beauty, Coffs Harbour from January 2017 to February 2018.

16. The first named applicant states that her employer decided to sponsor her for a Subclass 187 visa, and that Ms Anoja Vithanage was engaged to handle the application process.  The first named applicant states that Ms Vithanage failed to provide documents in relation to the application, that were in her possession when requested by the Department, in the time frame requested by the Department and so the nomination application was refused.  The first named applicant submits that Ms Vithanage urged both the employer and her to appeal the decisions to the Tribunal, but that after waiting a long time for the applications to be listed for hearing and due to the Covid-19 pandemic, her employer chose to withdraw the nomination application before the Tribunal.

17. The first named applicant states that she has become a scapegoat in this process due to the alleged errors caused by Ms Vithanage, and requests the Tribunal “not take any adverse effect on my file for my nominator withdrawing her application.”

18. At the hearing, the first named applicant indicated that she understood that this application could not succeed because there was no approved nomination from her sponsor.  The first named applicant told the Tribunal that her sponsor was unhappy waiting so long for a resolution of the applications and was even more unhappy when Ms Vithanage allegedly failed to submit documents on time.  She stated that on 28 April 2020, Ms Vithanage called her to advise that the sponsor had withdrawn the nomination application due to Covid-19, and that Ms Vithanage had told her there was no more she could do without a sponsor and so she had sought advice from new representatives.

19. Mr Bansal told the Tribunal he had explained the situation to the applicants, but had respected their wish to be heard before the Tribunal and so accompanied them in the telephone hearing on 9 December 2020, and he thanked the Tribunal for its time and care in hearing the applicants.

20. The nominator’s nomination application was refused by the Department. As the nomination application for the position to which the applicant’s Subclass 187 visa application relates has not been approved, it follows that the 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 visa 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 applicant’s visa application, she cannot overcome her current inability to meet cl.187.233 in relation to her application.  The nomination by Lancaster Enterprise 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 decision to refuse to grant a Subclass 187 visa to the secondary applicant as he is not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that he meets the primary criteria in his own right.

    DECISION

26. 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.