Godhu (Migration)

[2019] AATA 4707

Godhu (Migration) [2019] AATA 4707 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seshagiri Rao Godhu
Mrs Pavani Panga

CASE NUMBER:  1834683

HOME AFFAIRS REFERENCE(S):           BCC2017/1701618

MEMBER:Alison Mercer

DATE:5 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 05 July 2019 at 11:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application refused – no application for review of refusal – legislative amendment – new nomination application cannot satisfy requirement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233

CASES

Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049

Hou [2018] AATA 2858

Kaur v Minister for Immigration and Border Protection [2017] FCCA 564

Nguyen [2018] AATA 2859

Patel [2018] AATA 2055

Singh v Minister for Border Protection [2017] FCAFC 105

Virk [2018] AATA 2684

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 12 May 2017. 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 Direct Entry stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which requires that the applicant was the subject of an approved nomination by an Australian employer. The delegate found that the nomination of the applicant by his Australian employer, Mediterranean Catering, was refused by the Department on 11 October 2018, and thus the applicant could not satisfy cl.187.233(3) or cl.187.233 as a whole. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 187 visa as she found that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 27 November 2018, which was accompanied by a copy of the delegate’s decision.

7. On 2 April 2019, the Tribunal invited the applicants to attend a callover hearing to discuss the legal issue(s) relating to their case, but they did not attend.

8. On 24 May 2019, the Tribunal wrote to the applicants to invite them to attend a hearing on 14 June 2019. In the letter, the Tribunal noted that it appeared that the applicant was not currently the subject of an approved nomination by the employer who originally nominated him, as was required by cl.187.233 for a subclass 187 visa made in the Direct Entry stream. The Tribunal further noted in Singh v Minister for Border Protection [2017] FCAFC 105, the Full Federal court expressed the view that cl.187.233 could only be satisfied by the approval of the original nomination, and not be an approval of a later nomination made by another employer, or even a later nomination made by the same employer. The Tribunal noted that while that view was obiter in that case, it was consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 had to be the one which had been made at the time of the visa application, and could not be a latter nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application. The Tribunal reiterated that it appeared that the original nomination of the applicant had not been approved, which indicated that he did not meet cl.187.233 and could not now do so. This would result in the Tribunal affirming the decision under review, and under the circumstances, the Tribunal asked the applicant to either withdraw his review application or return the hearing form if he wished to proceed.

9. On 12 June 2019, the Tribunal received an email from a registered migration agent, Mr Gurdial Singh Ranjit Singh, who enclosed an authority appointing him to act as the applicants’ representative and authorised recipient for correspondence. The agent requested that the hearing be postponed as he had only just been appointed and was in the process of lodging an FOI application to obtain the applicants’ file. He stated that he attached written confirmation from the applicant relating to the compelling circumstances surrounding his matter and his plight in not being updated of his upcoming hearing. However, there was no attachment to the agent’s email other than the authority appointing him as the applicants’ representative.

10. On 12 June 2019, the Tribunal sent an email to the agent advising him that the Presiding Member had considered the request but declined to postpone the hearing, in view of the confined nature of the issue involved (as set out in the hearing invitation letter dated 24 May 2019) and noting that the applicants failed to attend an earlier callover where these matters would have been discussed.  The Tribunal also noted that the agent had referred in his email to an attachment from the applicant about circumstances beyond his control, but noted that there was no such attachment with the agent’s email. The Tribunal stated that the hearing would proceed as scheduled, and that the applicants would be at liberty to request additional time after the hearing to submit further material if they considered that they had something relevant to provide.

11. The applicants appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal also received oral submissions from the applicants’ agent.

12. In summary, the applicant told the Tribunal that he did not attend the callover hearing in April 2019 as he was not sure what it was about and assumed that it was for his employer to attend. The applicant said that his employer in Tasmania, Mediterranean Catering, had engaged a migration agent (not his current agent) to make the nomination application and the associated visa application. Neither the employer nor the agent told the applicant that the nomination had been refused and he still did not know why it had been.  He only found this out when he checked his own online record with the Department and found that his subclass 187 visa had been rejected, and the reason for that was that the employer nomination had been refused. The applicant confirmed that after this happened, he moved back to Melbourne to be with his wife, but was still in contact with his employers in Tasmania, and they were willing to lodge a new nomination for him for the same position. They were in the process of doing so, but the Tribunal hearing came up more quickly than the applicant and his agent were expecting, and the applicant asked the Tribunal to allow more time for his former employer to make the new nomination.

13. The Tribunal put some information to the applicant pursuant to s.359AA of the Act; namely, that the Tribunal’s records indicated that Mediterranean Catering did not lodge a review application with the Tribunal in respect of the refusal of its nomination of the applicant on 11 October 2018, and that the timeframe for doing so had now expired. The Tribunal explained that it considered that this information was relevant to the decision under review as it indicated that the original nomination of the applicant had not been approved and could not now be approved as there was no pending review of it at the Tribunal. It further advised that if it accepted this to be the case, then it would have to find that the applicant did not satisfy cl.187.233 and that that would be the reason (or part of the reason) to affirm the decision under review. The Tribunal asked the applicant whether he wished to respond immediately or request further time to do so. The Tribunal then adjourned the hearing to enable the applicant to consult his agent. On resumption of the hearing, the applicant indicated that he wished to respond or comment in the hearing. He asked the Tribunal what he could provide from his employer to show that he could meet cl.187.233.

14. The Tribunal discussed with the applicant and his agent its view that a new nomination, even by the same employer for the same position, could not satisfy cl.187.233, for the reasons set out in the invitation letter, and in particular, a nomination made after 18 March 2018, when major legislative amendments were made to the RSMS program, could not be used to satisfy cl.187.233 for a subclass 187 visa application made before 18 March 2018. The applicant and his agent requested that the Tribunal defer its decision for a week to enable the agent to make written submissions about several previous Tribunal decisions (made by a differently constituted Tribunal) where, the applicant’s agent argued, the Tribunal had remitted subclass 187 visa application cases where the employer had attended the hearing to indicate how the employer would rectify the problems with its refused nomination. The Tribunal undertook to read any cases to which it was referred, but made no guarantee to follow them, indicating that they had no binding precedential value on the Tribunal as presently constituted and that it would have to determine whether the facts and law in the previous cases were the same as the applicant’s.

15. Following the hearing, the Tribunal received a legal submission with supporting documents from the applicant’s agent on 21 June 2019.  In his summary, the applicant’s agent made the following points (in summary):

    ·the relevant issue in the applicant’s case was whether the nomination had been approved;

    ·the nomination made by Mediterranean Catering, the applicant’s nominating employer, had not been withdrawn, despite being refused;

    ·the originally nominated position remained available to the applicant and he was occupying it;

    ·the visa application was made prior to the approval of the nomination;

    ·the applicant had mentioned that Mediterranean Catering was prepared to lodge a new nomination, despite not having lodged a merits review application of the refusal of its original nomination;

    ·it was queried whether, despite the case law cited by the Tribunal, it was possible to salvage a visa application, after the original nomination had been refused, by simply lodging a new nomination of the proposed position;

    ·it was also queried whether a new nomination enlivened the Tribunal’s jurisdiction to hear an application for review of the Department’s decision to refuse the visa application, and whether there was a way of solving the situation where no application had been made to the Tribunal for merits review of the refusal of the nomination of the position;

    ·the recent case of Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 provided some useful and important guidance on this issue;

    ·in that case, the applicant applied for a subclass 187 visa on 7 June 2013. The associated nomination was refused by the Department on 5 December 2013. No merits review application was made to the Tribunal by the nominator. After the visa was refused on 19 December 2013, after the Department wrote to the applicant to advise that the nomination had been refused and inviting him to withdraw. However, the nominator had attempted to lodge a new nomination in respect of the applicant for the same position on 15 December 2013;

    ·in that case, the Tribunal affirmed the Department’s decision to refuse the visa application on the basis that cl.187.233 was not met, as there was no approved nomination and no pending nomination review.  On appeal to the Full Federal Court, the applicant attempted to argue that the situation could be ‘cured’ by the lodgment of a second nomination by the employer, and that there was no legal limit on the number of times an employer could nominate an employee and a position, so long as the nomination related to the same position and employer;

    ·the Full Court did not accept this submission, and held that there can only be one nomination in relation to a visa application for an employer-sponsored visa. It held that the appropriate mechanism for dealing with a refused nomination is to seek merits review by the Tribunal of that decision. It further held that the regulations relating to the Regional Sponsored Migration Scheme did not contemplate that an unsuccessful nomination could be cured by simply lodging further nominations in respect of the same visa application and applicant;

    ·it went without saying that this decision had important implications for subclass 457 visa applications as well, which were also subject to the requirement that an application for approval of nomination of the position must be made and approved; and

    ·so the answer to the question was that it was not possible to rescue an application for employer-sponsored after a nomination refusal by lodging further nomination applications. Rather, the only recourse (according to Singh’s case) is to seek merits review of the original nomination refusal, but failure to do so within the mandatory time limits would be fatal to the associated visa application.

16. The attached documents comprised the following previous Tribunal decisions (decided by different Members):

    ·Hou [2018] AATA 2858 (27 June 2018): in which the Tribunal remitted a subclass 187 visa application with a direction that cl.187.233 as the Tribunal had now set aside the associated nomination refusal decision, which was also under review with the Tribunal, and substituted a decision to approve the original nomination;

    ·Nguyen [2018] AATA 2859 (25 June 2018): as above;

    ·Patel [2018] AATA 2055 (18 April 2018): as above; and

    ·Virk [2018] AATA 2684 (21 June 2018): as above.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

18. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

19. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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); 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.

20. It was conceded by the applicant at the hearing that the nomination made in connection with his subclass 187 visa application, made by Mediterranean Catering, was refused by the Department on 11 October 2018 (although he stated that he did not find this out until later, when his visa was refused).

21. As discussed with the applicant at hearing, it is the Tribunal's view that the review application in relation to his subclass 187 visa application cannot succeed because the original nomination of them by Mediterranean Catering was refused and was not the subject of a review by the Tribunal. Thus, there is no approved nomination of the applicant as a Café or Restaurant Manager by that employer.

22. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.187.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made.

23. It is clear that this requirement could not be satisfied by a later nomination made by a different employer, and on current authority, a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.

24. This was the view taken in Singh v MIBP [2017] FCAFC 105. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event; that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

25. The Tribunal considers that although the Court's comments were strictly obiter, they are nonetheless highly persuasive in relation to subclass 187 visas.  Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

26. It follows from this that in practice where a nomination is refused or withdrawn, the visa applicant will not meet cl.187.233 (unless there is also a review of any decision to refuse the nomination which is pending. This is not the case here).

27. The Tribunal notes that the applicant’s agent conceded this in his submission of 21 June 2018.  The Tribunal has reviewed the previous Tribunal decisions which he provided and is satisfied that there is nothing in them that would change the legal situation for the applicant. In particular, it notes that in all of the cases cited by the applicant’s agent, there was a pending review application before the Tribunal in relation to the original nomination refusal decision, and that in each case, the Tribunal had a combined hearing for the nominator and visa applicant’s review applications. The Tribunal then set aside each of the original nomination refusal decisions and substituted its decision to approve each of the nominations in the above cases. It then remitted the associated visa refusal cases to the Department for reconsideration with the direction that cl.187.233 was now satisfied as the original nomination applications had been approved.  This is in contrast to the applicant’s case, where his nominating employer did not seek Tribunal review of the refusal of its nomination.

1. The Tribunal notes that the applicant and his agent maintain that Mediterranean Catering, his original nominating employer, is willing to lodge a new nomination now and that the applicant’s position remains open.

2. However, in addition to the case law set out above indicating that even a new nomination by the same employer would not satisfy cl.187.233, and as also discussed at the hearing, legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

3. Therefore, given the above, the Tribunal finds that cl.187.233(3) is not met by the applicant and thus he does not meet cl.187.233 as a whole.

4. The Tribunal must also affirm the decision not to grant a subclass 187 visa to the second named applicant, as it finds that she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence that she meets the primary visa criteria in her own right.

5. The applicants 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.

   DECISION

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

   Alison Mercer
   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

   (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.