Gill (Migration)

[2019] AATA 6902

Gill (Migration) [2019] AATA 6902 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kamalpreet Singh Gill
Mrs Simardeep Kaur
Miss Jasmine Kaur
Master Mantaj Singh Gill

CASE NUMBER:  1622099

HOME AFFAIRS REFERENCE(S):          BCC2016/833278

MEMBER:Mary Sheargold

DATE:15 July 2019

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 15 July 2019 at 10:59am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – position nomination refused and decision affirmed on review – visa, residence and work history – reliance on migration agent’s advice – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 187.223, 187.311

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 Immigration and Border Protection 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 29 February 2016. 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 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.187.223(2) of Schedule 2 to the Regulations because there was no approved nomination.

6. The applicants appeared before the Tribunal on 3 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Craig Salamone, director of the applicant’s nominating employer, Satinwood Nominees Pty Ltd.

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 187.223 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 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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information;

    ·the position is located in regional Australia (as defined in r.5.19);

    ·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. The applicant’s nominating employer, Satinwood Nominees Pty Ltd as trustee for The Salatam Family Trust, applied for approval on 26 February 2016 but the application was refused by a delegate of the Minister for Home Affairs.  The nominating employer applied to the Tribunal for a review of that decision.

12. On 3 May 2019, the applicant appeared before the Tribunal, and did so in a combined hearing with the nominating employer who appeared in respect of the nomination application.  At the hearing, the Tribunal considered the issues relating to the refusal of the nomination by the delegate of the Minister for Home Affairs and the requirements of the nominating employer to satisfy the criteria for approval to nominate the applicant for his Subclass 187 visa, as well as the requirements for the applicant to be granted the visa.  Specifically, the Tribunal explained that the nomination application would need to be approved in order for the applicant’s application to be remitted to the Department for reconsideration.  The Tribunal notes that the applicant indicated he understood this.

13. On 20 June 2019, the Tribunal made a decision in relation to the nomination application by Satinwood Nominees Pty Ltd as trustee for The Salatam Family Trust affirming the decision of the delegate of the Minister for Home Affairs to refuse that application. Therefore, the Tribunal finds that the applicant cannot satisfy cl.187.233 of Schedule 2 of the Regulations because the position specified in the visa application is not the subject of an approved nomination.

14. 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].

15. In this matter, the Tribunal notes that because there is no approved nomination for the primary applicant’s visa application, he cannot overcome his current inability to meet cl.187.233 in relation to his application.  The nomination by Satinwood Nominees Pty Ltd as trustee for The Salatam Family Trust was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

16. Therefore, cl.187.223 is not met.

17. On 20 June 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited him to comment on or respond to information that the nomination application in respect of his visa had been refused, and to do so by 4 July 2019.  On 2 July 2019, the applicant responded to the Tribunal’s letter.  In that letter, he stated that he was wrongly guided by his migration agent in relation to his visa application.  Specifically, he noted that:

    ·when he applied for his Subclass 187 visa on 26 February 2016, his Subclass 457 visa was still valid and remained valid until 7 April 2018;

    ·he was given a new employment contract when he lodged his Subclass 187 visa application;

    ·on 5 September 2016, his application was allocated to a case officer, and that he received an email from his migration agent at that point stating that the case officer only requested an Indian police clearance and evidence that the applicant had undergone a medical examination;

    ·on 3 October 2016, his migration agent sent him another email requesting documents such as his employment contract, PAYG statements from his previous years of employment with the nominator, financial reports for the nominator, payslips and training documents for the nominator;

    ·on 20 October 2016, his migration agent again requested those documents and that the applicant provided those documents to the migration agent, but after 1 hour, he received a call from his migration agent stating that the nomination application had been refused;

    ·he then saw that, in fact, his nomination application had been refused a day earlier;

    ·it was the applicant’s “bad luck” that his employer had been on holidays for a week from 5 October 2016 to 13 October 2016;

    ·on 20 October 2016, his migration agent sent a subsequent email recommending that the applicant appeal the decision to the Tribunal, that the hearing would occur within a few months, and that both appeals would be won;

    ·however, his Tribunal file remained open for more than 2 years;

    ·his migration agent had advised him that he had already provided evidence in respect of the training requirements in relation to the nomination application to the Department and as such, no further documents were required;

    ·he was concerned that the Tribunal requested the “same” documents of him on 18 March 2019 and that he wondered “how many times your department need [sic] a new employment contract”;

    ·after the hearing on 3 May 2019, his migration agent stated that he would submit the necessary documents within 2 weeks, but that he again asked for an extension, and in the end, he submitted incomplete documentation.

18. The applicant’s response also notes that he has worked for his nominating employer for more than 5 years, and that he has spent almost 14 years in Australia with no criminal record and no bankruptcy.  The applicant noted that 10 years ago, he had an issue with a migration agent failing to submit the correct documents for a visa application, and that the applicant feels embarrassed in front of his friends, family and relatives.  The applicant notes that his friends, family and relatives have asked for over 10 years when he will receive permanent residency in Australia.  He states that he is now not talking to his friends and relatives.

19. The applicant’s response notes that he has spent in excess of $80,000 on migration agent fees since he arrived in Australia, and has paid over $60,000 in taxes.  He states that “in the end I waste 14 years of my life.”  The applicant states that he and his wife and both depressed and stressed, and that his 8 year old daughter does not wish to return to India.  He notes that his 3 year old son knows nothing about India.  He states that people suggest he can apply for other visas, but notes he is unable to concentrate to take an English language test and that he has no money to spend on visas.

20. Of concern to the Tribunal, the applicant states: “I am finished, I am in depression sometimes I am thinking about suicide. Please tell me what is my fault. Maybe this is my life’s last letter.”  The Tribunal acknowledges that the applicant is in a very difficult position at present, but notes that it does not have any discretion to take the applicant’s personal circumstances into consideration in assessing whether or not he can satisfy the criteria for the grant of his Subclass 187 visa. 

21. However, the Tribunal does wish to note that at the hearing, the Tribunal found the applicant to be a genuine and credible witness who has worked diligently for his nominating employer for a number of years.  The Tribunal notes that Mr Salamone indicated his strong support for the applicant to continue working for the nominating employer for the long term, and notes that Mr Salamone believes the applicant is an important person within his business.  The Tribunal acknowledges that the applicant is in a vulnerable position due to his reliance on his migration agent in respect of his visa application.

22. Ultimately, the applicant has not been able to provide any evidence that he does have an approved nomination in order to satisfy cl.187.223(2) of Schedule 2 to the Regulations. Therefore, the Tribunal emphasises its reasoning and findings above and notes that the applicant cannot meet cl.187.223.

23. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

24. Further, because the applicant is unable to satisfy cl.187.233, the secondary applicants are unable to satisfy cl.187.311(a) because they are not members of a family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decision under review in relation to the secondary applicants must be affirmed.

    DECISION

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

    Mary Sheargold
    Member

    
    

    ATTACHMENT A

    187.223(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 1114C (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 to which the application relates is located in regional Australia.

    (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.