Gill (Migration)

[2021] AATA 724

Gill (Migration) [2021] AATA 724 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satinder Paul Singh Gill

CASE NUMBER:  1811801

HOME AFFAIRS REFERENCE(S):          BCC2016/2474611

MEMBER:Michael Ison

DATE:18 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 18 February 2021 at 3:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – nominating company purchased by applicant after nomination application refused now deregistered – immigration detention – wife and son’s secondary applications separated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 223(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 10 April 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is Mr Satinder Paul Singh Gill who is a 43-year-old Indian national and is referred to in these reasons as the applicant.

3. The applicant applied for the visa on 26 July 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

4. The applicant has a wife and son who are also in Australia and were nominated as secondary applicants in the applicant’s application for the visa. [Information deleted].

5. [Information deleted]

6. The applicant was detained in immigration detention on 26 July 2019 and at the time of this decision remains in immigration detention. [Information deleted]. For these reasons the Tribunal has separated the review application of the applicant as the primary applicant for the Subclass 186 visa from the review applications of the applicant’s wife and son as the secondary applicants for the Subclass 186 visa.

7. 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.

8. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic (General) which has been designated as position 321211 under the Australian and New Zealand Standard Classification of Occupations which is known as ANZSCO.

   The primary decision

9. The applicant provided the Tribunal with a copy of the primary decision made by a delegate of the Minister.

10. The delegate refused to grant the visa because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because there was no approved nomination of the position the applicant applied for the Subclass 186 visa to fill.

11. On 28 February 2018 the nomination lodged by Mannu Total Skills Pty Ltd ACN 163 588 869, being the nomination of the position of Motor Mechanic (General) (ANZSCO 321211) that the applicant had applied for, was refused by a delegate of the Minister.

12. Mannu Total Skills appealed that refusal to the Tribunal.

13. On 1 May 2020 the Tribunal, differently constituted, affirmed the decision of the delegate to refuse to approve the nomination made by Mannu Total Skills.

    Tribunal hearing

14. On 4 February 2021 the Tribunal wrote to the applicant advising him that the Tribunal could not make a decision in the applicant’s favour based on the material before it and invited the applicant to appear before the Tribunal on 12 February 2021.

15. The applicant appeared before the Tribunal on 12 February 2021 to give evidence and present arguments by audio-visual link from immigration detention.

16. The applicant was not represented by a migration lawyer or registered migration agent.

17. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The hearing was held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold a hearing by audio-visual link, 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. The Tribunal was satisfied the applicant, the interpreter and the Tribunal could satisfactorily see, hear and understand each other during the hearing.

18. At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal. The applicant responded that he did not. The Tribunal informed the applicant that it would seek submissions from the applicant toward the end of the Tribunal hearing on any matter he considered relevant to his review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2) of Schedule 2 to the Regulations.

    Nomination of a position

21. 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.

22. 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.

23. When the Tribunal invited the applicant to the hearing held on 12 February 2021, the Tribunal provided the applicant with a copy of:

    ·The decision of the Tribunal, differently constituted, affirming the decision of the delegate not to approve the nomination of a position by Mannu Total Skills; and

    ·An extract from a publically available register maintained by the Australian Securities and Investments Commission (ASIC) stating that Mannu Total Skills had been deregistered as a company on 21 September 2020.

24. During the hearing on 12 February 2021, the Tribunal explained the information in the decision of the Tribunal dated 1 May 2020 to the applicant in accordance with the procedure set out in s.359AA of the Act, in the following terms:

    The decision of the Tribunal, differently constituted, on 1 May 2020 to refuse to approve the nomination of the position you have applied for the Subclass 186 visa to fill would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

    Because that information is potentially adverse to you, I am going to provide you with more particulars about the information and I am going to explain how the information is both relevant to your review today and what the consequences for your review are if the Tribunal relies on that information.

    Now the Tribunal has not formed any view yet about that information and will not form a view until it has heard from you. 

    The information is that there is not an approved nomination for the position you seek to fill as the basis for your application for the Subclass 186 visa.

    On 1 May 2020 the Tribunal, differently constituted, affirmed or upheld a decision of a delegate of the Minister not to approve the nomination of a position by Mannu Total Skills Pty Ltd under r.5.19 of the Migration Regulations.

    The position nominated was that of a motor mechanic.

    The delegate of the Minister who initially refused to approve the nomination found there was insufficient evidence to demonstrate that Mannu Total Skills would be able to employ a motor mechanic on a full time basis in the position for at least two years contrary to the requirements of r.5.19(3)(d)(i).

    The Tribunal as constituted for the review of the application for approval of the nomination wrote to Mannu Total Skills on 24 February 2020 seeking updated information about the nomination. Mannu Total Skills did not respond. The Tribunal’s letter to Mannu Total Skills was sent by email to [email protected], which was the last email address provided for the company to the Tribunal.

    Section 379A of the Migration Act sets out the methods the Tribunal may use to send formal notices to an applicant. Section 379A(5) provides such notices may be sent by electronic mail to “the last address for service provided to the Tribunal by the recipient in connection with the review; or the last residential or business address provided to the Tribunal by the recipient in connection with the review.”

    When the Tribunal did not receive a response to its request for updated information it was entitled to proceed to make a decision on the information before it. That is what the Tribunal did on 1 May 2020.

    The relevance of this information to your review is that under cl.186.223 of Schedule 2 to the Migration Regulations the requirements to be able to be granted a Subclass 186 visa include that there must be an approved nomination of the position the visa applicant intends to fill per r.186.223(2).

    The information before the Tribunal is that there is no approved nomination of the position you have applied for the Subclass 186 visa to fill which means you do not meet the requirements of cl.186.223(2).

    Do you understand the relevance of the information the Tribunal has shared with you to your review?

    The consequence for your review if the Tribunal relies on the information it has shared with you is that the Tribunal would have to affirm the decision of the delegate to refuse to grant you a Subclass 186 visa because there is no approved nomination of a position that forms the basis of your application for the Subclass 186 visa. The Tribunal does not have a discretion to ignore the requirement that there be an approved nomination.

    Do you understand the consequences for your review if the Tribunal relies on the information disclosed to you?

    Shortly I am going to invite you to comment on or respond to that information, but you do not have to do so straight away. If you would like additional time to consider the information I have disclosed to you before commenting upon it or responding to it, the Tribunal will consider any request for additional time you choose to make.

    Mr Gill, would you like additional time to consider the information the Tribunal has disclosed to you before commenting upon it or responding to it?

25. The applicant did not request additional time to consider the information the Tribunal shared with him before commenting upon or responding to that information.

26. The applicant’s response and general evidence may be summarised as follows:

    ·The applicant worked as a motor mechanic for Mannu Total Skills trading as Gary Beerling Automotive Service Centre prior to purchasing the business in early 2019;

    ·At that time the business operated from 32 Mills Road, Dandenong in Victoria;

    ·The Tribunal asked the applicant whether at the time of purchasing the business the applicant became a or the sole director of Mannu Total Skills to which the applicant replied “yes”;

    ·When the Tribunal sought clarification of the applicant’s answer whether he was a sole director or one of two or more directors of Mannu Total Skills, the applicant replied that he does not know these things;

    ·The applicant subsequently moved the business to Langwarrin in Victoria but could not recall the address;

    ·At the time the business operated from Dandenong the applicant used the same telephone number and email address for the business as the previous owner;

    ·When the applicant moved the business to Langwarrin the applicant used the same email address for the business as previously but changed the telephone number for the business to the applicant’s mobile telephone number;

    ·When the applicant was detained and placed in immigration detention he was taken directly from his workshop and was not able to take any documents with him and as he was not able to operate the business any more he eventually sold or gave away all of the assets of the business including the business’ computer;

    ·The applicant advised that he could not access the business emails using his internet enabled mobile telephone because he could not remember the password for the email login;

    ·For these reasons the applicant told the Tribunal he was not aware the Tribunal, differently constituted, had written to Mannu Total Skills about its nomination and he was also not aware ASIC had deregistered Mannu Total Skills in September 2020 until the Tribunal as presently constituted informed him of that;

    ·The applicant said he did not inform the Tribunal about the change of ownership of the business because he was going through so many things at the time [information deleted];

    ·When the Tribunal indicated to the applicant that it is difficult for the Tribunal to accept that while the applicant was able to purchase the business that up until then had employed him he could not find time to inform the Tribunal of the change of ownership of the company that was sponsoring his application for a Subclass 186 visa given he only had to email the Tribunal. The applicant responded that he did not know he had to inform the Tribunal of such matters;

    ·The Tribunal asked the applicant if anyone informed ASIC of the change of ownership of Mannu Total Skills. The applicant responded that he does not know;

    ·The applicant told the Tribunal he was assisted in the purchase of Mannu Total Skills by an accountant in Dandenong but he could not remember the accountant’s name;

    ·When the Tribunal asked the applicant if there was a contract of sale for the business the applicant responded that there was something, some paperwork but he could not remember any details in relation to it;

    ·The applicant’s evidence is the business operated successfully with the applicant as owner and the mechanic right up until the time he was placed in immigration detention on 25 July 2019;

    ·The Tribunal asked the applicant if he wanted to tell the Tribunal anything about the deregistration of Mannu Total Skills and the applicant replied no;

    ·The applicant told the Tribunal he is a hard working man who knows a lot about cars and their repair and if he was released from immigration detention and able to live in the community he would work hard again [information deleted] because while he may not be a perfect human being he is a perfect dad and his family should not be punished for his mistakes and he feels he has been punished too much for his mistakes already;

    ·The applicant also told the Tribunal that even if the Tribunal does not give the applicant a visa to please give his son a visa so the applicant’s son does not have to go through the stress of returning to India; and

    ·[Information deleted].

27. The information before the Tribunal indicates Mannu Total Skills was properly notified in accordance with the requirements of the Act of the request for information by the Tribunal as previously constituted but the applicant’s failure to keep the Tribunal informed of the change in ownership and contact details for Mannu Total Skills meant that the applicant was not aware, despite being the owner of the business, of the Tribunal’s communication.

28. Based on the evidence before it the Tribunal finds that at the time of this decision the nomination made by Mannu Total Skills of the position of Motor Mechanic (General) (ANZSCO 321211) has not been approved. For this reason, the applicant does not meet the requirements of cl.186.223(2) of Schedule 2 to the Regulations.

    Other matters

29. The finding of the Tribunal that the applicant does not meet the requirements of cl.186.223(2) will affect the secondary visa applications of the applicant’s wife and son. The Tribunal will write separately to the secondary applicants to inform them of this decision and if required will conduct a separate hearing for them in relation to their secondary visa applications.

    Conclusion

30. 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 by the applicant, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Michael Ison
    Senior Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.