HARMANMEET SINGH (Migration)

[2021] AATA 1882

HARMANMEET SINGH (Migration) [2021] AATA 1882 (15 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  HARMANMEET SINGH

CASE NUMBER:  1814336

HOME AFFAIRS REFERENCE(S):          BCC2016/3117956

MEMBER:Susan Reece Jones

DATE:15 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 15 May 2021 at 4:02pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 September 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 stream, or the Direct Entry stream.

4. In the present case, the applicant (also referred to as the nominee) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO: 351411).

5. On 3 April 2018, the Department refused to grant the visa because the nominator Sardar Saab Enterprises Pty Ltd, did not demonstrate that it had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years as required under regulation 5.19(4)(d). On the basis of the Department’s decision, the applicant could therefore not satisfy cl.187.223, which requires that the nominee be the subject of an approved nomination.

   Nominator proceedings

6. On 16 October 2020, the nominator represented by its sole director Mr Maninder Singh , appeared before the Tribunal to give evidence and present arguments in relation to a related case, which the Tribunal had agreed to hear in addition to this case.

7. On 30 October 2020, the nominator represented by its sole director Mr Maninder Singh appeared again before the Tribunal. The nominator was represented by its representative, Ms Jee Han of Australian Immigration Law Services.

8. At that hearing, the Tribunal advised the nominator’s director Mr Singh and the representative that there was potentially adverse material on the Department’s file that had been brought to the Tribunal’s recent attention and it was covered by a valid s.376 certificate. The Certificate allows the Tribunal to have regard to the certified material, and if it thinks appropriate, to disclose it – or the gist of the material contained in it - to the nominator. 

9. The Tribunal is also subject to a general duty to restrict the disclosure of the material, where it would be contrary to the public interest because it may have adverse consequences on the life or physical safety of the identified information provider and their family. Whilst the Tribunal has discretion to disclose the full details of the allegations on the Department file, as disclosure in this case was noted as having the possibility of endangering the safety of the informant, the Tribunal did not disclose any further details.

10. The nominator was advised at hearing on 30 October 2020 that the Tribunal was prevented from disclosing the Department’s actual records to the nominator (although the relevant case law indicated that the Tribunal could nevertheless put the gist of information contained in the certified Department documents to the nominator, if it was relevant and potentially adverse to the nominator’s case).

11. The gist of the information put to the nominator at hearing and contained in the s.376 Non-Disclosure Certificate was that there is an allegation that the restaurant operated by the nominator had in fact been closed for about 2 years and that information relating to the restaurant operation on social media is false and misleading. In addition, the Certificate noted that the nominee is resident in Blacktown, Sydney, may use an alias name and is not actually working at the restaurant.

12. If these circumstances the case that per the allegations received by the Department, that the nominator was not actively operating and that the nominee was not working in the nominated position, the consequences of the Tribunal in relying on this information is that decision under review would be affirmed. This is because if the Tribunal accepted this information to be correct, it would be likely to find that the requirements in r.5.19(4) would note met and this would mean that the applicant did not meet r.5.19(4) as a whole and the Department’s decision to refuse to approve the nomination would have to be affirmed by the Tribunal.

13. The Tribunal adjourned the hearing on 30 October 2020 for 15 minutes so that the nominator director Mr Singh could confer with his representative.  When the hearing resumed, the Tribunal invited Mr Singh, pursuant to s.359AA of the Act, to comment or provide a response to this information, noting that he could do so immediately or could request additional time to do so.

14. On behalf of the nominator, Mr Singh elected to respond at the hearing to this information. He denied the claims and informed the Tribunal that the nominator had been closed for some renovations but that ‘the restaurant is definitely operating’, that it ‘had been closed due to the COVID-19 restrictions for 1-2 months but had recommenced trading’. When questioned by the Tribunal about the social media posts dating back to 2018/2019 and nothing since, Mr Singh provided no response other than to state it was a ‘coincidence’.

15. The nominator’s director Mr Singh did confirm to the Tribunal that he understood that the information is adverse to the applicant’s cases and that he stated that providing evidence to the Tribunal that the applicant is actively trading, ‘should be no problem’. The Tribunal invited the applicant to provide its submissions and evidence by 14 November 2020.

16. On the basis of the nominator’s hearing being adjourned, the Tribunal asked the nominator’s director Mr Singh and Ms Han (as representative also for the nominee), if they would like the Tribunal to proceed to hear the application for the nominee. Alternatively, postponement of the hearing until a later date following further submissions from the nominator was proffered by the Tribunal. The nominator advised that he would provide additional evidence and that it would be preferable to hear the nominee’s case following those submissions.

17. On 13 November 2020 the nominator provided some evidence to the Tribunal. Having received no further information from the nominator, on 22 December 2020 the Tribunal wrote to the representative to invite the nominator to a further hearing on 15 January 2021.

18. At hearing on 15 January 2021, the nominator’s director Mr Singh attended the hearing at the Tribunal. His representative, Ms Han was also in attendance. At that hearing, Mr Singh advised the Tribunal that the nominator wished to withdraw the application for this case and the related cases.

19. On 22 January 2021 pursuant to s359AA, the Tribunal wrote to the nominee to advise that the application for approval of the nominated position made by the nominator was refused by a delegate of the Minister for Immigration and that having sought a review of that decision, the nominator had now withdrawn that application for review. The nominee was also advised that approval of the nominator’s application for the nominated position was relevant to the review because it is a requirement for the grant of the visa that the position specified in this application be the subject of an approved nomination. Further the nominee was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite the nominee to comment on or respond to this information which the Tribunal considers would, subject to the nominee’s comments or response, be the reason, or a part of the reason, for affirming the decision under review

20. On 11 February 2021, the Tribunal wrote to the nominee inviting him to attend a hearing at the Tribunal on 26 February 2021 to give evidence and present arguments relating to the issues arising in this case.  

21. On 26 February 2021, the nominee appeared before the Tribunal. The nominee representative Ms Han was in attendance.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is  whether the relevant nomination has been approved.

    Nomination of a position

24. 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.

25. 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 located in regional Australia (as defined in reg 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.

    Nominator proceedings

26. The applicant applied for a visa on the basis of a nomination made by Sardar Saab Enterprises Pty Ltd, (the nominator). The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 3 April 2018.

27. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination.

28. Following hearing on 30 October 2020 (outlined above) which was adjourned, on 15 January 2021, the nominator’s director Mr Singh and representative Ms Han attended a hearing at the Tribunal. At that hearing, Mr Singh advised the Tribunal that the nominator wished to withdraw the application for both this nomination and that of the related cases.

    Applicant proceedings

29. On 22 January 2021 pursuant to s359AA, the Tribunal wrote to the nominee to advise that the application for approval of the nominated position made by the nominator was refused by a delegate of the Minister for Immigration and that having sought a review of that decision, the nominator had now withdrawn that application for review. The nominee was also advised that approval of the nominator’s application for the nominated position was relevant to the review because it is a requirement for the grant of the visa that the position specified in this application be the subject of an approved nomination. Further, the nominee was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite the nominee to comment on or respond to this information which the Tribunal considers would, subject to the nominee’s comments or response, be the reason, or a part of the reason, for affirming the decision under review

30. On 11 February 2021, the Tribunal wrote to the nominee inviting him to attend a hearing on 26 February 2021 to give evidence and present arguments relating to the issues arising in this case.  

31. On 26 February 2021, the nominee appeared before the Tribunal. Mr Singh- the applicant - attended the hearing at the Tribunal by way of telephone due to the COVID-19 circumstances. 

32. The hearing commenced with the Tribunal providing the applicant with a review of the history of the proceedings in relation to the refusal of the application for nomination by his employer, Sardar Saab Enterprises Pty Ltd. The Tribunal outlined that in order for his application to succeed, the applicant must be the subject of an approved nomination of Sardar Saab Enterprises Pty Ltd as his employer. The Tribunal further explained to the applicant that on the basis the nominator’s application had been affirmed, the consequence was that nomination could not be approved. The nominee expressed his disappointment that the nomination had not been approved, acknowledged to the Tribunal that he understood the consequences of the withdrawal and understood that this application could not be approved.

33. At the hearing, the applicant’s representative also acknowledged to the Tribunal that because the nomination was not approved, there could be no approval of the nominee’s application.

34. The nominee asked the Tribunal to delay its decision until international borders are opened. The Tribunal advised the nominee that this was not possible as the opening of the borders would be at an indeterminable time in the future. The Tribunal did however invite the nominee to provide any further submissions he may wish to submit.

35. On 12th March 2021, the nominee wrote to the Tribunal stating that:

    ‘ The review applicant is not able to depart Australia due to the COVID-19 Pandemic situation. He wishes to know whether you can hold the decision until the border is open or refer this case to the Minister.’

36. The Tribunal has considered whether this circumstance falls within the Ministerial guidelines for the Minister to personally intervene pursuant to s.351 of the Act even though the Tribunal review has been unsuccessful. The Tribunal notes that this power is an entirely discretionary one on the part of the Minister. Guidelines as to what kinds of unique or exceptional circumstances may warrant Ministerial intervention are set out on the Department’s website: >

    These circumstances are stated to be non-exhaustive and include exceptional scientific, cultural or other benefit that would result from an applicant (or applicants) being permitted to remain in Australia; and/or circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular applicant’s case.  There is also a list of circumstances on the Department’s website in relation to which the Minister has indicated that the s.351 guidelines would not be met.  

37. The Tribunal has considered the nominee’s circumstances in this case and does not regard the outcome in this case as falling within the Ministerial guideline relating to cases in which the application of relevant legislation leads to unfair or unreasonable results in a particular applicant’s case.  The Tribunal therefore declines to refer this case to the Minister for consideration pursuant to s.351.

38. 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.

39. Accordingly, the Tribunal finds that cl.187.223 (2) is not met as there is no approved nomination of Sardar Saab Enterprises Pty Ltd and therefore cl.187.223 as a whole cannot be met by the applicant.

40. Therefore, given the finding that cl. 187.223 is not met, the appropriate course is to affirm the decisions not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Susan Reece Jones
    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.