Gervais (Migration) - [2021] AATA 3491

Gervais (Migration) [2021] AATA 3491 (27 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thomas Pierre Alexandre Gervais
CASE NUMBER:  1836275
HOME AFFAIRS REFERENCE(S):          BCC2017/3120955
MEMBER:Penelope Hunter
DATE:27 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.
Statement made on 27 August 2021 at 11:08am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – no approved nomination – bogus document with the visa application – false educational qualifications – compelling or compassionate circumstances – applicant left sponsoring employer – employer withdrew sponsorship – applicant’s crucial role with new employer – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 186.213, 186.223; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226

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 27 November 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 August 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion (PIC) 4020 of Schedule 4 to the Regulations was not met. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
The applicant appeared before the Tribunal on 20 August 2021, via MS Teams video to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
Following the hearing, the applicant also provided to the Tribunal a letter, dated 24 August 2021, from Anthony Moore, regarding evidence of his current employment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
There are two issues that have arisen in relation to the review application. The first is whether in relation to the position to which the application is made, the applicant satisfies cl.186.223 for the grant of the visa. The second is whether, for the purposes of cl.186.213, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gervais (Migration)

Details

AGLC: Gervais (Migration) [2021] AATA 3491
Case: [2021] AATA 3491
Decision Date: 27 August 2021

CaseChat Overview and Summary

This matter concerned a review application by an applicant for an Employer Nomination (Permanent) visa (Subclass 186) of the Employer Nomination Scheme. The applicant had applied for the visa based on a nomination by his former employer, M.R.V.L. Investments Pty Ltd, for the position of chef. The Tribunal, constituted by Penelope Hunter, was required to determine whether the applicant satisfied the requirements for the visa grant and whether a specific Public Interest Criterion (PIC) should be waived.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which mandates that a nomination has not been withdrawn and the nominated position remains available to the applicant. Additionally, the Tribunal had to consider whether the applicant met the requirements of PIC 4020(1), which relates to the provision of bogus documents or false or misleading information, and if not, whether PIC 4020(1) should be waived under PIC 4020(4) due to compelling or compassionate circumstances.

The Tribunal found that the applicant's former employer, M.R.V.L. Investments Pty Ltd, had formally withdrawn its support for the applicant's visa application and terminated his employment. The applicant confirmed this information and stated he was now employed by a different business. As the nomination had been withdrawn and the position was no longer available to the applicant through the nominating employer, the Tribunal was not satisfied that the requirements of clause 186.223 were met. Furthermore, the Tribunal determined that the circumstances did not warrant a waiver of PIC 4020(1), as there were no compelling or compassionate circumstances affecting the interests of Australia or an Australian citizen, permanent resident, or eligible New Zealand citizen.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE There are two issues that have arisen in relation to the review application. The first is whether in relation to the position to which the application is made, the applicant satisfies cl.186.223 for the grant of the visa. The second is whether, for the purposes of cl.186.213, the applicant meets the requirements of PIC 4020(1) and if not, whether PIC 4020(1) should be waived. The position to which the application relates Clause 186.223(3) of Schedule 2 to the Regulations requires that the nomination has not been withdrawn. Further, cl.186.223(5) requires that the position is still open to the applicant. The applicant applied for the Employer Nomination Scheme (Subclass 186) visa under review on the basis of a nomination by his employer M.R.V.L. Investments Pty Ltd, in the position of chef (ANZSCO 351311). The applicant told the Tribunal at the hearing that he was no longer working for his former employer, and that he had ceased working for them around September 2018. For some time he had been working for a new business, Frankie’s Pizza, as a head chef/pizza chef. The letter from Anthony Moore, People Director, for the company Smart & Mazzocca Pty Ltd t/as Frankies confirmed that the applicant had been employed in this different business since 2019. Within the Department file before the Tribunal was correspondence from the representative from the applicant’s former employer. The Tribunal discussed the information contained in this correspondence with the applicant pursuant to the provisions of s.359AA of the Act. The applicant was advised that the relevant information was that on 14 September 2018, M.R.V.L. Investments Pty Ltd advised the Department that it no longer wished to support the permanent visa application of the applicant and formally withdrew its support. Further information was provided that the applicant’s employment was terminated as at 22 September 2018. The applicant was advised that the information was relevant as it was a requirement for the grant of the visa under cl.186.223 that the position still be available to the applicant and that the nomination had not been withdrawn. The applicant was further advised that if the Tribunal relied upon the information it may find that he did not satisfy cl.186.223(3) and cl.186.223(5) which was a requirement for the grant of a Subclass 186 visa and it would be the reason or a part of the reason for the decision under review being affirmed. The applicant did not seek additional time and elected to respond to the information immediately. He confirmed that his employer had withdrawn support for the visa when issues had arisen with the sponsorship. He felt this was unfair as he had previously been working for M.R.V.L. Investments Pty Ltd for more than five years and had done a very good job. He was disappointed that they did not support him. Due to the undisputed information that the applicant’s position has been terminated and that his nominating employer has withdrawn the nomination in respect of the applicant, the Tribunal is not satisfied that in respect of the position relevant to the visa application that the position is still available to the applicant, and further finds that the nomination has been subsequently withdrawn by his nominating employer. The letter submitted by the applicant from Anthony Moore does not establish that the applicant is the subject of a further nomination, additionally it is not the relevant nomination referred to the in the visa application under review.

Decision

Reasons for decision

For the above reasons, the Tribunal is also not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4). DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.Penelope HunterMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.