Gohil (Migration)

[2021] AATA 4950

Gohil (Migration) [2021] AATA 4950 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saurabh Vikramsinh Gohil
Mrs Jankibahen Amitkumar Patel
Miss Shanvi Saurabh Gohil

CASE NUMBER:  1824630

HOME AFFAIRS REFERENCE(S):          BCC2016/1505786

MEMBER:Alison Mercer

DATE:1 October 2021

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 1 October 2021 at 4:44pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – compassionate circumstances – beyond the applicant’s control – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 April 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 (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 two alternative visa streams: the Temporary Residence Transition (TRT) stream, or the Direct Entry (DE) stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (ANZSCO code 142111).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by her proposed Australian employer. The delegate noted that the nomination of the applicant made by her employer, V26 Group of Companies Pty Ltd (trading as Night Owl Convenience Toowoomba) had been refused by the Department on 6 July 2018. The delegate found that the applicant could not meet cl.187.233 as a whole and therefore did not meet the DE stream criteria, and had made no claims to meet the TRT stream criteria. The delegate therefore refused her a subclass 187 visa. The delegate also refused to grant subclass 187 visas to the second and third named applicants (the applicant’s wife and daughter) on the basis that they did not meet the secondary visa criteria in cl.187.311, which required them to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 24 August 2018, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Susan Battistin, as their representative and authorised recipient for correspondence. Also provided were copies of documents already submitted to the Department with the visa application.

7. On 24 February 2021, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing to be conducted by telephone on 9 April 2021 to discuss their review application.

8. On 3 March 2021, the applicants advised the Tribunal that they would attend the hearing and also that their agent no longer acted for them. They requested that correspondence be sent directly to them.

9. On 10 March 2021, the Tribunal wrote again to the applicants, pursuant to s.359A of the Act, to invite them to comment on information that was potentially adverse to their case. The Tribunal advised that the specifics of the information were that the Department’s records indicated that the nomination of the applicant by his employer, V26 Group of Companies Pty Ltd, had been refused on 6 July 2018, and further, that the Tribunal’s records indicated that the Tribunal (differently constituted) had found that it had no jurisdiction to review that refusal decision on 20 October 2020 as the employer company had been deregistered on 12 June 2020 and had not been reregistered. The Tribunal advised that this information was relevant to the decision under review as it indicated that the applicant could not satisfy cl.187.233 as he was not the subject of an approved nomination by his original employer. It further noted that he therefore could not satisfy the DE stream criteria and there was no evidence that he met the TRT stream criteria for a subclass 187 visa. The Tribunal also noted that if it found this, then it would also have to find that the second and third named applicants did not meet cl.187.311, requiring them to be a member of the family unit of a person who held a subclass 187 visa, and that there was no evidence that they met the primary visa criteria in their own right.

10. The Tribunal advised that this would be the reason (or part of the reason) to affirm the decision under review. The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.233 in respect of a subclass 187 visa application lodged prior to 18 March 2018.

11. The Tribunal invited the applicants to make any comments they wished to make on the above information by 24 March 2021, noting that they would lose their entitlement to a hearing if they did not do so, or seek an extension of time to do so, by the due date.

12. On 23 March 2021, the applicants provided a response to the Tribunal’s s.359A letter, in which the applicant attached documents to support his case, including:

    ·copy of his employment agreements with NightOwl Fuel Pty Ltd for positions as Store Manager at Mooloolaba outlet (19 June 2018), Moffat Beach outlet (25 February 2019), and Noosaville outlet (3 February 2021);

    ·letter from NightOwl Franchise Support Office dated 30 November 2020 to the applicant advising of salary increase from $54,000 to $57,200 per year;

    ·copies of the applicant’s payslips from Nightowl (QLD) Pty Ltd, variously dated;

    ·reference letter dated 17 March 2021 for the applicant attesting to his value as a skilled employee as full time site manager at Nightowl Noosaville;

    ·kindergarten early learner report on the applicant’s daughter (the third named applicant), undated; and

    ·letter from the applicant.

13. In his letter, the applicant states as follows:

    Dear Sir/Madam,

    I am writing this letter to support my visa application which was originally submitted in April 2016. I have been working as a Retail Manager in Sunshine Coast, QLD ever since. I have retained my position as a Manager for the last 4 years working with NightOwl, Australia. This includes transfers within the group to two other progressively bigger sites.

    I accepted the offer to work fulltime as the Store Manager at NightOwl, Mooloolaba in June 2018, and then to the NightOwl retail store at Moffat Beach BP Service Station in February 2019, and most recently to even superior NightOwl store at Noosaville SHELL Service Station in February 2021. My continued efforts, hard work, experience and skills have allowed me to gain higher opportunities with more responsibilities throughout this time. Attached are the copies of my appointment letters and some of my official pay slips confirming progressive pay rises during this period.

    I came to Australia in the year 2006 and I have spent over 14 years here. I call Australia home. I have always lived a life of a model law abiding citizen, staying away from any type of crime or illegal activities.

    I have a 5 years old daughter, Shanvi who was born in Australia in March 2016. She just started her school in January 2021. Shanvi is very clever and a bright student. Since I and my wife Janki both work, Shanvi attended a local day-care centre since she was 5 months old. We were happy to pay the full day-care fees (unsubsidised) because we strongly believed that this is the best way, she could adapt the Australian culture, history and the values. She loves to sings the song “I am Australian” in both English and Yawuru languages. She learned them at her day-care Centre. Her dream is to be a Police officer when she grows up and sing “I am Australian” on the stage one day. As a parent, I wish she can continue getting her education here so one day she can fulfill her Australian dreams.

    My Wife Janki Patel has studied Commercial Cookery in Australia and currently she is working as a Cook in Jamaica Blue Café & Restaurant, Maroochydore. She serves Australian breakfast and lunch every day at her work. Janki is a very talented Cook who genuinely loves cooking. She often gets compliments from her customers at work. She wants to follow her passion for cooking and one day open her own café/restaurant.

    Janki also frequently volunteers at Mountain Creek School on her days off helping teachers in class, reading books to kids and arranging extracurricular activities. Outside all this, she is also a devoted mother and a wife. She works as hard as she can to give her best to the family.

    Janki wasn’t able to spend enough time with her own parents as they were separated when she was very young. She was raised by her aunt. Janki understands the importance of parents for a child, so she is working as hard as she can to fulfill our daughter’s dreams.

    We have lived the Australian way of life and have worked hard as all other Australians do. We have supported ourselves independently and contributed to the Australian economy by paying income tax all these years. It is also worth noting that we have paid over $100,000 for our international tuition fees and more towards our living expenses till now. And in addition to paying the day-care fees at full rate for over 4 years, we are also paying our daughter’s school fees at full rate even though it is a state school. I do not regret this as I see this as an investment in my daughter’s future.

    In last 14 years, I have had the privilege to meet and befriend many Australians. Many of them have been my neighbours and some have been my colleagues. I have never felt like an outsider in this country. I love Australia, Australian people and the Australian way of life. After all these years being here, I consider this country my home and I would like to spend the rest of my life here with my family.

    It has been over 4 years since my permanent visa application was originally submitted to the department of immigration. It has been quite a tumultuous time for myself and my family. The uncertainty of our future has caused us a great deal of anxiety and distress. I had fulfilled all the requirements from my end at the time of my application. I have been working full time as a retail manager all these years while living in regional Queensland. My original application was rejected after two years for no fault of my own.

    I sincerely request you to please consider all of the above and grant my permanent residency visa as soon as possible so I and my family can finally call Australia our home. We cannot wait to buy our first home. Please do not hesitate to contact me or my employer (NightOwl Australia) should you have any questions.

    Thanking you in anticipation.

    …

14. The applicant appeared before the Tribunal by conference telephone on 9 April 2021 to give evidence and present arguments.

15. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants, which included the fact that the applicants were located in Queensland and the Presiding Member in Victoria. 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 is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

16. The applicant confirmed that he was still employed as a Retail Manager at NightOwl at Noosaville, which was an outlet run by the NightOwl franchise head office. The applicant said that the head office had 18 outlets, some of which it ran directly and others which were run by franchisee companies, such as his original nominating employer, V26 Group of Companies Pty Ltd. The applicant said that his current employer were very happy with his work, and that he had progressed from the NightOwl in Mooloolaba, then to Moffat Beach and now Noosaville due to his hard work. He therefore found it hard to accept that his and his family’s subclass 187 visa applications had been refused due to the fact that his original employer’s nomination was refused and that it was then deregistered. He emphasised that this was not within his control but the subclass 187 visa refusal onshore meant that he was subject to s.48 of the Act, which prevented him from making another subclass 187 employer sponsored visa application onshore, even though his present employers had been willing to do so. However, that visa category was then discontinued.

17. The applicant noted that it was impossible for him to travel overseas last year to lodge an offshore visa application due to the lack of flights and COVID19-related travel restrictions, and that even if he were able to do so this year (which was not clear) it would be very disruptive for his wife, who continued to be employed as a Cook by Jamaica Blue, and his daughter, who had started primary school in January 2021. The applicant said that his wife had now obtained a positive skills assessment as a Cook and her employer was willing to sponsor her for a skilled points test visa, but again, this could not be done onshore due to the s.48 bar. 

18. In response to the Tribunal’s query, the applicant said that he was classified as an essential worker so continued to work full time during the COVID19 pandemic, while his wife’s employer shut for a period, then started offering takeaway food and had now reopened for in-house customers. The applicant reiterated that a negative decision would be devastating for the family as relocating to India would be financially disastrous and they were very concerned about the COVID19 situation there. His parents were still there, but they were retired and could offer little support.

19. The Tribunal noted that cl.187.233 contained no discretion and could not be met unless the applicant had an approved nomination by his original employer, which he did not, even if this was outside his control and/or there were compassionate or compelling circumstances in his case.

20. The Tribunal noted that if the review application was unsuccessful, the applicants could consider requesting Ministerial intervention pursuant to s.347. It suggested that the applicants get migration advice about this, as it might affect their work rights. It agreed to defer its decision until 23 April 2021 to enable the applicant to obtain advice and/or provide any additional submissions.

21. On 23 April 2021, the Tribunal received additional submissions from the applicants, as follows:

    • email from the applicant in which he states that, ‘I have attached additional information to support my visa. As per advice, I have sought migration advice about Ministerial Intervention and they have informed me there will be no positive outcome and after this, I will have no other option to apply for another visa onshore. I have only one option if the member defers the decision until my wife is eligible to apply for another visa which will take her at least 5 to 6 months to apply;’
    • detailed statement from the applicant, expanding on the above;
    • positive ‘job ready’ skills assessment for the second named applicant for the occupation of Chef, dated 11 March 2021;
    • copy of the third applicant’s junior swimming certificate, dated 13 April 2021; and
    • email correspondence between the applicant and his employer regarding RSMS visa application and nomination in 2018.

22. The contents of the applicant’s detailed statement are as follows:

    I had applied 187 visa in April 2016 at that time processing time was 6 months and Immigration took more than 2 years to decide my visa application. My Nomination was rejected as there was no need of Manager and the position was as a supervisor as per Immigration, till that time I was in same role as a Retail Manger managing the store, as owner of the business used to live and work in Gold coast. I have seen many Retail Managers has got approval from similar business in that time.

    Meanwhile business was not operating but I haven’t left my role as a manager.

    Night owl Qld Pty Ltd had employed me as Retail Manager to manage Night owl Mooloolaba. Weekly sales were approximately $ 18,000 to $ 20,000.

    After 6 months I was offered another role as retail manager in Night owl Moffat Beach BP Petrol  Weekly $ 75,000 Approximately  station with more responsibility and after I also got my salary increase as I had worked hard for the company,

    Night owl Qld Pty Ltd was ready to sponsor 494 visas for me but due to Covid 19 situation there are no flights to depart and I am not able to lodge the other visas.

    In Feb 2021 I was offered another job at Night owl Shell doing weekly sales around $ 2, 00,000 even bigger site than Moffat Beach.

    Meanwhile my wife Janki Patel has applied for Job Ready Program for skill assessment and her outcome is positive and now she is eligible to apply 491 visas as we are leaving in Sunshine Coast from last 5 years and it comes in Qld Regional. My wife will be eligible in 4 months to apply another visa.

    Also at this stage there are so many Covid -19 positive cases in India and I don’t want to put my family in danger condition as its getting more and more worst over there and there is shortage in beds and oxygen, also have to wait days and days for cemetery process.

    I want to keep my family safe here in Australia and I don’t want to put my family in dangerous condition. We are already safe here in Australia and don’t risk us with Covid-19 infection by cancelling our visa. I request you to give us some more time so we can apply another visa as I don’t have any other option. Dear member you are only the one who can do this.

    Australian government has a real commitment to building a multicultural society then it really should not take anyone years to become a Permanent resident. I am as suitable now having lived here for close to 15 years as I will ever be. My commitment to this country has been demonstrated by the fact that I have worked those 15 years, paid taxes without the entitlements afforded to citizens. I have married here in Australia and had a child and made my life here.

    It is unfair for people such as us, who have been contributing for years, compared with the ones that already have PR in their hands before arriving. We live here, studying and working, and now when finally, about to achieve permanent visa, we are told visa has been rejected (in our case) to proudly call ourselves Australians.  To us personally it will be over 14 years. However, people with PR just need to arrive in the country and live for 4 years before achieving citizenship. I do not think they would contribute, integrate into this society any better or longer than us.

    We made our life plans based on the rules at the time we applied for PR, if we had known about these things in advance we could have made a more informed decision on whether to apply for permanent residency.

    I request that my family will struggle to re-establish in India, and we would be affected financially and emotionally if we have to leave, given we are living in Australia for 14 years. This will effect on our child as well who born in Australia and have spent most of her life here in Australia.

    I sincerely request you to please consider all of the above and grant my permanent residency visa or give us some more time so I and my family can finally call Australia our home. Please do not hesitate to contact me or my employer (NightOwl Australia) should you have any questions.

    Thanking you in anticipation.

1. 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

2. 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.

3. 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 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.

4. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicants), the nomination of the applicant by V26 Group of Companies Pty Ltd, was refused by the Department on 6 July 2018.

5. As discussed with the applicants, although V26 Group of Companies Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 20 October 2020 as the company had been deregistered on 12 June 2020.

6. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. 

7. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) 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. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even 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.[2]

   [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

   [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

8. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. 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.[4]

   [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

   [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that 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 to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

9. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  There is no longer a nomination review pending in this case.

10. Moreover, the Tribunal notes that 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.

11. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

12. Moreover, the Tribunal must also find that the second and third named applicants do not meet the secondary visa criteria in cl.187.311 requiring them to be members of the family unit of a person who holds a subclass 187 visa, and it finds that there is no evidence to suggest that they meet the primary visa criteria in their own right.

13. The applicants have 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 decisions under review must be affirmed.

14. The Tribunal notes that the applicants have raised a number of compassionate circumstances relating to their case, including the fact that the failure of the applicant’s nomination was outside his control, he is still employed as a valued employee by his nominating employer, his wife is a qualified Cook and is also employed by an employer willing to sponsor her, and that the family has been in Australia for some years and are well settled here (in particular, the third named applicant has just started primary school education). At the time of the Tribunal’s hearing, it was unclear whether the second named applicant might have another visa option, although the Tribunal accepts that it was unlikely to be an onshore one. As discussed with the applicant at hearing, the Tribunal has no legal discretion to take these factors into account when assessing whether the requirements of cl.187.233 are met, but it notes that it is open to seek Ministerial intervention pursuant to s.351 of the At in their case following receipt of the Tribunal’s decision, if they believe their case involves sufficiently compelling or unique circumstances.

    DECISION

15. 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.