Harjinder SINGH (Migration) - [2024] AATA 131

Harjinder SINGH (Migration) [2024] AATA 131 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harjinder Singh
REPRESENTATIVE:  Ms Yu-Ching Hsiao
CASE NUMBER:  1935070
HOME AFFAIRS REFERENCE(S):          BCC2018/1122408
MEMBER:De-Anne Kelly
DATE:25 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 25 January 2024 at 7:09am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café Manager – no approved nomination – employer relocated – impact on employer – request for Ministerial Intervention – commitment to the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19
CASES
Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 528
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 529
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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 stream, or the Direct Entry stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Café Manager.
The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by AS & NS Pty Ltd was refused being the application referred to in cl 187.233(1).
The applicant appeared before the Tribunal on 22 November 2023 to give evidence and present arguments. A further hearing was held on 9 January 2024 to allow the employer Mr Nishan Singh who represented the nominator to give evidence at the hearing. Only partial interpretation was required by a Hindu to English interpreter although it is noted that the applicant did not request interpretation and advised that he had understood the matters at the hearing.
The applicant was represented in relation to the review by Ms Diana Xidan Tong (MARN: 9359088) and later by Ms Yu-Ching Hsiao.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl 187.233(3) which provides.
(3) The Minister has approved the nomination.
Nomination of a position
Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.
In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made the 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.
The Tribunal at the first hearing put to the applicant under s359AA of the Act the information that when the employer nomination was refused the employer lodged a review application with the Tribunal which was affirmed as refused by the Tribunal on 7 September 2023. As such there is not an approved employer nomination to satisfy cl. 187.233(3) and this may be part or all of the reason to affirm the decision to refuse the visa application by the primary applicant.
The employer nomination was refused because the owner had re-located the business some hundreds of kilometres away from the original nominated location and while having the option of lodging a new employer nomination and visa application which would have likely satisfied the criteria at the time had chosen not to do so. It was found that the legislation required the position to be in “that place” that was the original location specified in Form 1395 in the nomination application and as such the Tribunal found that was not satisfied. Various reasons were given for not lodging a further employer nomination and visa application such as the protracted time it would take for consideration and incorrect migration advice. It is noted that the employer has appealed this Tribunal decision to the Federal Circuit Court and it now becomes a matter for the Court.
The applicant was given 14 days for further submissions.
It transpired that the employer Mr Nishan Singh had attended the first hearing and expected to be asked to give evidence but had not spoken up at the hearing. The Tribunal considered it fair to hold a second hearing to allow the employer to give evidence.
The employer stated that the nominee held a critical position as Café Manager and the regional location they are located in has skill shortages which makes it difficult to replace the nominee in the position. The owner of the business lives and works some 3 and a half hours away from the business. He states that advertising for baristas and similar position are not filled as young people are not interested and do not want to work.
The legal representative stated that the nominee has genuine skills and experience and had passed a skills assessment. The business is long standing and the option for a new nomination and Regional Sponsored Migration Scheme employer visa is limited.
Closing statements were invited and the nominee said he had been fulfilling the responsibilities for 6 years and he is fully skilled and experienced and has worked hard.
The legal representative initially went to the arguments for the employer nomination to be granted but this decision cannot be re-visited, a position the legal representative agreed upon. She then stated that they wished to highlight the importance of the nominee to the business and that he is highly sought after and experienced and should be referred for Ministerial Intervention by the Tribunal.
The applicant was given a further 14 days to make further submissions.
There is no approved employer nomination to satisfy cl 187.233(3) and it is not met.
Therefore, cl 187.233 is not met.
The applicant requested a referral for Ministerial Intervention. The Tribunal has considered the AAT Practice Guidelines and the Ministerial Guidelines on what matters should be referred to the attention of the Minister.
Ministerial Intervention
The Ministers Guidelines state as follows.
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
a)strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
b)compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
c)exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
d)circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
e)the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.
f)a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.
g)the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
The applicant has made representations dated 21 November 2023 and 6 December 2023 and particularly referred to pages 3 -6 of the former and page 2 of the latter. Mr Nishan Singh the employer made submissions dated 20 November and 5 December 2023.
The submission 21 November 2023 goes through the background to the employer nomination and the arguments in support of granting the employer nomination which cannot be revisited and then requests an adjournment until the employer nomination appeal can be heard in the Federal Circuit Court. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li. Unlike Li where the adjournment was requested for a “highly specific purpose” namely a pivotal piece of evidence that would determine whether the review was affirmed or set aside; the applicant has asked on the basis that he wishes to wait an indeterminate period of time for a decision which may or may not be favourable to the employer. Such a request is not consistent with the Courts finding.
The Tribunal is also guided by the judgment in Huo v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 24 May 2002) [2002] FCA 617 (15 May 2002) at [31] where his Honour stated.
As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.
For the reasons above the Tribunal declines the request for an indefinite adjournment and considers it is reasonable to proceed to a decision on this matter.
The legal representative continued to present arguments regarding the affirmed employer nomination refusal and (Case no. 1931494) Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 528 (18 March 2021). They argue that the associated visa application decision was affected by Harinsco and was handed down in Singh FCCA and then was appealed from Singh FCCA to the Full Federal Court. The judgement of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123, appeal from Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 529 was delivered on 07 August 2023. The central argument the legal representative made is that the employer nomination affirm decision was based on a technicality of reg 5.19(4)(h)(ii)(A), (E) and (F) and may be affected by the decision in Singh FCAFC and as such could lead to an unfair result for the current visa review. These are matters for a Court to determine. The Tribunal does not believe there is error in the affirm decision on the employer nomination and cannot re-visit the decision.
They state that the subclass 187 direct entry stream is closed and not available to the visa applicant and that he would have to apply for a visa offshore. They state that he still works for the employer and that the 187 Regional Sponsored Migration Scheme employer nomination scheme is intended to overcome shortages of workers in regional areas. The legal representative states that for these reasons the application of relevant law leads to an unreasonable and unfair result in the applicant’s case. While these arguments are acknowledged they go to the merits of the employer nomination decision and do not address the fact that the visa applicant does not have an approved employer nomination.
In the case for Ministerial Intervention the legal representative states the applicant meets the criteria of “Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen”. They state that the nominee is highly skilled and has worked for the employer for some 6 years and that the owner Mr Nishan Singh lives a significant distance away and manages two other businesses. Mr Nishan Singh would face hardship to find a replacement manager and the overall business would be adversely affected if the applicant cannot continue working and as such the owner of the nominating business Mr Nishan Singh an Australian citizen, would suffer, serious, ongoing and irreversible harm and continuing hardship since the business operations of the Café depends on the applicant.
Mr Singh’s submissions repeat the background to the employer nomination decision and the time that the applicant has worked for the now re-located business for some 6 years. He states that he has tried to recruit qualified staff in advertisements, but the regional area is not as attractive as the major cities. They are facing hardship in filling roles and need to retain the applicant. He refers to the applicants’ qualifications, skills and experience and that he has a strong rapport with customers which makes him fundamental to the ongoing running of the business. Mr Nishan Singh states that the applicant has increased the turnover of the business and is key to the success of the business operations.
The legal representative states that the applicant meets the criteria for Ministerial Intervention being “Exceptional economic or other benefit that would result from the visa applicant being permitted to remain in Australia”. They argue that post COVID the tourism and hospitality sector is critical to Australia’s economic recovery and that Café Manager is on the Regional Occupation List which indicates that there is shortage of skilled workers in the nominated position. They make a heroic leap from the continued employment of the applicant as a Café Manager to the conclusion that this would result in economic benefit to Australia. It is noted that any employment could be argued as providing an economic benefit to Australia however the actual requirement is “exceptional” economic or other benefit.
The Oxford Online Dictionary defines exceptional as follows.
“Of the nature of or forming an exception; out of the ordinary course, unusual, special.”
There is a letter of support from the director of the Queanbeyan Multicultural Council dated 20 November 2023 stating that the applicant has a strong commitment to the Australian community and his involvement in various community activities and that his presence in Australia will have exceptional economic, social and cultural benefits.
The submission of 6 December 2023 cavasses similar arguments as those put forward in the 21 November 2023 submission.
Consideration
The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others. Mr Nishan Singh has detailed the challenges he faces in replacing the applicant however while the position is on regional occupation lists the owner has provided scant evidence of the advertisements that show he is unable to replace the applicant or resumes for those who have applied. Mr Nishan Singh has not stated that his business is facing closure or that another employee could not be trained to take over the managerial tasks. The nominee’s distress at this outcome is acknowledged as is the inconvenience and disruption to Mr Nishan Singh’s café and his business.
Plainly the applicant is a valued employee however this does not reach the threshold of (a) namely “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”.
The Tribunal has considered the second criteria that the applicant could meet namely “exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.”
It is noted that exceptional means unusual or special and the Tribunal considers that this would be commensurate with someone at the forefront of scientific, research, arts, sports, cultural or similar achievement rather than that of a Café Manager, worthy as that occupation may be. It is noted that the applicant has a strong involvement with the community however again this is not in the meaning of exceptional cultural or other benefit.
It is noted that despite the legal representative’s argument regarding the outcome being unfair there are no unintended consequence of the legislation. It is the intention of the legislation that if the applicant has no approved employer nomination and does meet cl 187.233 the visa application cannot succeed.
The applicant has not provided evidence that would enliven any of the other criteria listed above and as such the Tribunal finds it cannot refer the matter for Ministerial Intervention however it notes that the applicant can make a request directly to the Minister if they consider they meet the eligibility criteria.
The applicant 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

The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
De-Anne Kelly
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
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.