FERNANDO (Migration)

[2020] AATA 3262

FERNANDO (Migration) [2020] AATA 3262 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thewarathanthrige Sathika Madusanka FERNANDO
Mrs Wedage Nayani Jayamali Silva
Mr Thewarathanthrige Dihein Keynuja Fernando

CASE NUMBER:  1916042

HOME AFFAIRS REFERENCE(S):          BCC2018/897285

MEMBER:Phoebe Dunn

DATE:17 June 2020

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 17 June 2020 at 2:24pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook – no approved nomination– not the subject of an approved nomination– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362, 363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 (the Act).

2. The applicants applied for the visas on 25 February 2018. 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 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 related nomination application lodged by Waratah at York Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1), was refused by a delegate of the Minister on 13 May 2019, and as such there was no approved nomination.

6. The applicants were originally invited to attend a hearing of this matter on 10 March 2020, but this was postponed at the applicant’s request to 25 March 2020.  By letter dated 20 March 2020, the Tribunal advised the applicant that due to the COVID-19 pandemic the hearing had been changed from a face-to-face hearing to a telephone hearing and due to the shortened notice period requested the applicant’s consent to the hearing being conducted by telephone. The applicant did not respond to the Tribunal’s letter and did not attend the hearing. Consequently, the Tribunal decided to reschedule the hearing to 29 April 2020 to afford the applicant the appropriate notice period of the change of hearing type and to give the applicant an opportunity to advise any concerns the applicant may have in participating in a telephone hearing.  This invitation noted that if the applicants did not participate in the scheduled hearing, the Tribunal may make a decision on the review without further consideration of the application or the information before the Tribunal. The hearing invitation was sent by letter dated 14 April 2020.

7. By email received on 28 April 2020, the applicant, through his representative, advised that he would not be attending the hearing the following day as he had not been able to take the day off work and requested that the hearing be rescheduled. The Tribunal agreed to the request and rescheduled the hearing to 14 May 2020.  By email received on 13 May 2020, the applicant, through his representative, again advised that the applicant was not able to attend the scheduled hearing as the applicant was not able to take the day off work. On this occasion, the applicant did not request an adjournment of the hearing.  By letter dated 13 May 2020, the Tribunal advised the applicant that after carefully considering the circumstances of this case, including the determinative issues before the Tribunal, together with the Tribunal’s obligation to provide a review mechanism that is fair, just, economical, informal, quick and proportionate, the Tribunal had determined to proceed with the hearing as scheduled.  In its letter, the Tribunal advised the applicant that if he did not participate in the scheduled hearing (by answering his phone on the scheduled date and time), the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear before the Tribunal, or may dismiss the application for review without any further consideration.

8. The applicants did not attend the hearing by telephone on the scheduled date and time.  The Tribunal made three attempts to contact the applicants on the telephone number listed on the Tribunal’s file just prior to and during the scheduled date and time of the hearing, but the applicants did not answer the phone on any occasion.  Two attempts were also made to contact the applicant’s representative, who did not answer his phone.

9. By letter dated 26 May 2020, the Tribunal wrote to the applicants noting that as the applicants did not attend the hearing on the scheduled date and time the Tribunal was proceeding to make a decision on the review but would not do so before 9 June 2020.  In its letter, the Tribunal invited the applicants to make submissions or provide information in support of their case, including making submissions on the determinative issue on review, being that the related nomination application by Waratah At York Pty Ltd had been refused by the Department on 13 May 2019, and there was no pending review application before the Tribunal in relation to that decision and as such the applicant did not meet the requirements of cl.187.233(3), as there was no approved nomination.

10. The applicants did not respond to the Tribunal’s letter.

11. The Tribunal has considered whether it should exercise its discretion under s.362B(2) to reschedule the hearing or delay the decision on review further to enable the applicants to appear before the Tribunal as rescheduled.  The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the application of the principle of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

13. The Tribunal has had regard to the fact that the application was refused by the Department on 11 June 2019 because the delegate concluded that the applicant had not demonstrated it met the requirements of cl.187.233(3) of Schedule 2 to the Regulations. The applicants submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicants have been aware for one year of the reasons for the visa refusal, being that there was no approved nomination as required under cl.187.233(3).

14. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to present information to the Tribunal on the determinative issue on review, being whether the related nomination application in relation to the applicant has been approved. The Tribunal notes that it is uncertain if and when the applicants will provide information to establish the applicant meets the requirements for the grant of a Subclass 187 visa.

15. The Tribunal also notes the history of this review application and, having regard to the Tribunal’s obligation to provide a review mechanism that is fair, just, economical, informal, quick and proportionate, the Tribunal is not disposed to delay its decision making indefinitely.

16. Accordingly, the Tribunal has decided not to exercise its discretion under s.362B(2) to reschedule the hearing or to delay the decision on review to enable the applicants to appear before the Tribunal as rescheduled, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicants more time in which to demonstrate that the applicant meets the requirements for the grant of a Subclass 187 visa.

17. The applicants were represented in relation to the review by their registered migration agent, Mr Shamraiz Mehdi.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

20. 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.

21. 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 r.1.13A and r.1.13B of the Regulations); 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.

22. The applicant’s visa application was refused because the application for approval of the nominated position made by the nominator was refused by a delegate of the Department on 13 May 2019.  That decision was not appealed by the nominator and as such the matter has been finally determined. It follows that the nominated position referenced in the applicant’s visa application has not been approved as required by cl.187.233(3). Accordingly, the Tribunal finds cl.187.233(3) is not met.

23. Therefore, cl.187.233 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. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    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.