Ghimire (Migration)

[2023] AATA 4178

Ghimire (Migration) [2023] AATA 4178 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kishor Ghimire
Mrs Sita Pokharel Ghimire
Master Kist Ghimire
Miss Saanvi Ghimire

CASE NUMBER:  2218606

HOME AFFAIRS REFERENCE(S):          BCC2019/5300765

MEMBER:Mary Sheargold

DATE:1 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 01 December 2023 at 4:25pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – subject of approved position nomination – related nomination application refused and no application for review made – department’s delay in processing application – employer died suddenly with no succession plan, business sold and applicant’s continuing work for new owners – occupation has been removed from list for stream – shortage of skilled workers in regional area – unique and unforeseeable circumstances – referred for ministerial consideration – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), r 5.19(1), Schedule 2, cls 186.223(2), 186.311

CASE
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 on 28 November 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 October 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition 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 186.223(2) of Schedule 2 to the Regulations because the nomination application made by E. H. Lascelles Pty Ltd for the position of Cook was not approved.

6. The applicants appeared before the Tribunal by telephone on 28 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

10. In addition, this criterion also requires that:

    ·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.

11. On 31 August 2023, the Tribunal wrote to the 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 Cook made by E. H. Lascalles Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that there was no evidence that an appeal had been made in respect of that refusal.  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 14 September 2023, 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 prepare arguments.

13. On 12 September 2023, the first named applicant provided a detailed written submission dated 11 September 2023, outlining the significant hurdles he had faced in this visa application process.  Significantly, the Tribunal notes the application, along with the nomination application, sat with the Department for almost 3 years without a decision being made.  The applicant stated that his employer had passed away in July 2022, and as part of that process, the company operating The Union Hotel (his place of employment) had sold the business to another entity.

14. The applicant highlighted this as the basis for the refusal of the nomination application, being that E. H. Lascalles Pty Ltd was no longer employing him; in fact, the company was being wound up.  The applicant has continued to work for the new owners of the business and continues to enjoy his work there.

15. At the hearing, as well as in his written submission, the first named applicant explained that he cannot commence a new nomination application with the same employer for his current role of Cook because that occupation has been removed from the list of occupations applicable to the Temporary Residence Transition stream for the Subclass 186 visa.  He noted he would also need a new English language test and skills assessment, and had taken steps to obtain both of those.

16. The Tribunal expressed its sympathy to the applicant for the very unfortunate and completely unavoidable circumstances he had found himself in, but it noted that there was no discretion to remit her application in circumstances where there is no approved nomination. The nominator’s nomination application was refused by the Department, and the nominating entity no longer operates The Union Hotel where the applicant works. As the nomination application for the position to which the applicant’s Subclass 186 visa relates has not been approved, it follows that the applicant does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations.

17. 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 relating to the mirroring provision in cl.187.233(3) of Schedule 2 to the Regulations 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].

18. In this matter, the Tribunal notes that because there is no approved nomination for the applicant’s visa application, he cannot overcome his current inability to meet cl.186.223(2) in relation to his application.  The nomination by E. H. Lascalles Pty Ltd was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

19. Therefore, cl 186.223(2) is not met.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

21. Pursuant to cl.186.311, the Tribunal must also affirm the decision to refuse to grant Subclass 186 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 186 visa, and there is no evidence that they meet the primary criteria in their own right.

    Referral to Minister for intervention pursuant to s 351 of the Act

22. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which 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. 

23. The Tribunal agreed to provide the applicant with additional time to furnish written submissions and support letters, and on 3 October 2023, he provided the Tribunal with a brief written submission, a reference letter from Sam Benjamin, the new owner and director of The Union Hotel in Colac, Victoria, a letter from Dan Tehan MP dated 30 August 2023, and copies of his skills assessment and English language test results.

24. Having carefully considered the materials provided and the arguments made by the applicant, the Tribunal is satisfied that truly unique and unforeseeable circumstances attach to this applicant’s case.  His employer died suddenly, with no succession plan for the hotel business he operated, and during the time the business transitioned to new ownership, the delegate refused the nomination approval as well as this visa application.  Had the owner of E. H. Lascelles Pty Ltd not died, it is probable the nomination application would have been approved.  The applicant has remained a loyal and valued employee of The Union Hotel in Colac for many years and has the strong support of his new employer as well as the local community to continue on in his role.

25. Further, the known and severe shortage of adequately skilled hospitality workers in regional Victoria is a compelling reason to refer this case to the Minister for consideration.  Sam Benjamin at The Union Hotel attests to the vital role the applicant plays in ensuring the continued smooth running of that business after a very difficult time in 2022.

26. 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

27. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mary Sheargold
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.