Hewa Amaratunga (Migration)

Hewa Amaratunga (Migration) [2020] AATA 904 (18 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Senarath Gotabaya Amaratunga Hewa Amaratunga
Mrs Pershie Nimaal Amaratunga Matara Arachchige
Miss Neseni Ninoka Amaratunga Hewa Amaratunga
CASE NUMBER:  1920356
HOME AFFAIRS REFERENCE(S):          BCC2016/2206804
Date:18 March 2020
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 18 March 2020 at 12:28pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – multiple requests for adjournment – passing of nominated representative – residence in remote community – opportunity to retain a new lawyer or migration agent – Tribunal’s statutory purpose considered – Direct Entry stream – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
MIAC v Li (2013) 249 CLR 332
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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 June 2016. 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 (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.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 22 February 2019 a decision was made to refuse the nomination application lodged by Soumya De Alwis. The visa applicant Senarath Gotabaya Amaratunga Hewa Amaratunga was advised of the decision the same day and given an opportunity to comment within 28 days. The applicant via his Migration Agent (MA) did provide a response to the Department.
The applicants did not appear before the Tribunal on 18 March 2020 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered Migration Agent (MA).
On 14 March 2020 the applicant wrote to the Tribunal and advised he would not attend the review hearing scheduled for 18 March 2020. The applicant provided a copy of a “Response to Hearing Invitation” and in answer to the question would he and the two secondary applicants take part in the review haring ticked the box NO. The applicant advised the Tribunal that he is currently unable to have access to his file. This was new information and the Tribunal treated it as a further implied request for a postponement.
The Tribunal turns to consider this request. The High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The applicant has been aware since at least 5 July 2019 that the nomination lodged by Souma De Alwis being the nomination referred to in r.187.233(1) was refused by the Department. He has been aware of this fact because he was provided with a copy of the relevant decision record and lodged an application for review. The applicant has had since 5 July 2019 the opportunity to get his affairs in order, seek advice from a MA or from a lawyer and obtain a new MA or lawyer after the passing of his previous representative. He has chosen not to seek that advice. In addition the applicant has received multiple pieces of advice from the Tribunal to obtain and “provide to the Tribunal all documents you intend to rely on to establish that you meet the criteria for the visa”. The applicant is required to provide and obtain only one document, that document being set out in r.187.233(3) of the regulations that “The Minister has approved the nomination”
On 17 March 2020 the Tribunal wrote to the applicant by email and advised as follows:
·I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Regional Employer Nomination (Permanent) visas.
·I refer to your correspondence dated 14 March 2020 sent via email on 15 March 2020.
·This correspondence raised new reasons for requesting a postponement that had not previously been put to the Tribunal. To the extent that this was a postponement request it was considered carefully by the Member but he decided not to postpone the hearing.
·In your response to hearing invitation form dated 14 March 2020, you indicated that you would not be attending the hearing that was scheduled for 18 March 2020.
·As stated in that form, if you indicate that you will not take part in the hearing the Tribunal may make a decision on the application f for review without taking further action to enable you to appear before it.
The Tribunal refused the further implied request for an adjournment.
On 10 February 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 18 March 2020.The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
A response to the hearing invitation was received. The applicant advised the Tribunal he would not attend the review hearing. See paragraph 7 above. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 evidence of existence of the relevant 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 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 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.
On 10 February 2020 the Tribunal wrote to the applicant and invited him to attend a review application hearing to be conducted by phone. The Tribunal advised the applicant to “Please provide all documents you intend to rely on to establish that you meet the criteria for the visa”. In addition the Tribunal “requested that any material and other evidence you wish to rely on are provided to us at least 7 days before the hearing date”.
On 5 March 2020 the Tribunal again wrote to the applicant and invited him to attend a review application hearing to be conducted by phone at 10.30am (WA time) on 18 March 2020. The Tribunal advised the applicant to “Please provide all documents you intend to rely on to establish that you meet the criteria for the visa”. In addition the Tribunal “requested that any material and other evidence you wish to rely on are provided to us at least 7 days before the hearing date”.
On 9 March via email the applicant wrote to the Tribunal and sought an adjournment of the scheduled hearing date of 18 March 2020. The applicant advised as follows:
·As per your email and I also aware that my nominated representative and legal advisor Mr. Michael Goss passed away.
·I applied for employer sponsors’ visa (Visa class 187) on 30-06-2016. The immigration department hold my file more than 30 months without informing any reason for the delay to me or my immigration lawyer. My lawyer sent few reminders to them, but we did not receive any responses from immigration dept.
·My file was not handled by immigration department within a time frame given by immigration dept in appropriate way. As a result, my visa application was refused (after 36 months later) due to some technical issues which was able to avoid in year 2016 by immigration dept.
·Due to complicate legal situation in my matter, most of immigration lawyers refuse to accept my file. Mr Michael was only the immigration lawyer who agreed to accept my file and he was handling my file from 2018.
·I am living in very remote community call Broome, Western Australia from June 2016. Broome is situated in 2320 km away from Perth city and do not have any immigration lawyer to handle visa matters.
·Due to time difference in interstate and Broome, I am not able to find a qualified immigration lawyer to handle my file within a short period of time. I am not confidence to represent myself on the hearing on 18th March 2020.
·I need to find a qualified legal advisor to represent on behalf of me to handle my visa matter in professional way.
·Therefore, you are kindly request to consider my current situation and adjourn my appeal for another date please.
The Tribunal turns to consider this request. The High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
Whilst Broome is an isolated town located in the north-west of Western Australia it is a large service industry hub for surrounding agricultural, mining, seafaring and indigenous communities. A large number of lawyers practice law in Broome and surrounding areas. It is common for residents and business people in isolated towns to conduct their legal affairs with solicitors in towns like Broome or avail themselves of the services offered by thousands of lawyers and migration agents located in Perth and elsewhere in Australia. The work necessary to establish a file for review application hearing are commonly prepared via phone instructions. That, after all, is the reason why lawyers and migration agents exist and offer services. The Tribunal is satisfied a suitable migration lawyer or migration agent could be retained in Broome or a referral made for phone instructions to a suitable lawyer or migration agent locate away from Broome.
On 12 March 2020 the applicant wrote to the district registrar of the MRD in Melbourne in the following terms:
·As per your email and I also aware that my nominated representative and legal advisor Mr. Michael Goss passed away.
·I applied for employer sponsors' visa (Visa class 187) on 30-06-2016. The immigration department hold my file more than 30 months without informing any · reason for the delay to me or my immigration lawyer. My lawyer sent few reminders to them, but we did not receive any responses from immigration dept.
·My file was not handled by immigration department within a time frame given by immigration dept in appropriate way. As a result, my visa application was refused (after 36 months later) due to some technical issues which was able to avoid in year 2016 by immigration dept.
·Due to complicate legal situation in my matter, most of immigration lawyers refuse to accept my file. Mr Michael was only the immigration lawyer who agreed to accept my file and he was handling my file from 2018.
·I am living in very remote community call Broome, Western Australia from June 2016. Broome is situated in 2320 km away from Perth city and do not have any immigration lawyer to handle visa matters.
·Due to time difference in interstate and Broome, I a not able to find a qualified immigration lawyer to handle my file within a short period of time. I am not confidence to represent myself on the hearing on 18th March 2020.
·I need to find a qualified legal advisor to represent on behalf of me to handle my visa matter in professional way.
·Therefore, you are kindly request to consider my current situation and adjourn my appeal for another date please.
On 12 March 2020 the applicant wrote to the President of the AAT, Justice Thomas and the Deputy President of the MRD of the AAT Deputy President Redfern in the following terms:
·I applied for employer nomination sponsorship visa(subclass187) on 30th June 2016.
·The immigration department hold my file more than.30 months without informing any reason and refuse my visa application due to technical reason(after 36month).I applied for AAT to review the decision made by Immigration dept.
·I am still work in same business and business address did not change.
·Due to complicated legal situation in my visa matter most immigration lawyers refuse to accept my file. Finally, Mr. Michael Gross (Barrister /Migration Agent MARA 9803398) agreed to accept my file and he was handling my file from 2018.
·Mr. Michael Gross passed away on February 2020. The AAT in Melbourne well aware of it and my invitation for hearing addressed to M r. Michael Gross. (document attached)
·I received fetter from AAT to call for hearing on 18th March 2020 at 1.30pm.
·I informed to AAT on 9th March 2020 that, I am not confident to attend for hearing without professional representative and adjourn my hearing for another date-(document attached) I received email from AAT that they cannot adjourn my hearing. further to my telephone conversation had with Case Office r, I realized that they do not want to change the date of my appeal
·I feel that they already decided to refuse my Appeal.
·I am living in remote community call Broome, Western Australia (2320 Km away from Perth city) from June 2016 and do not have enough facility to find a new legal representative to handle my file within a short period of time.
·I understand that my visa application was not handle by immigration department within the time frame given by the dept. inappropriate way. Refuse of change the date of hearing; I do not have opportunity to provide all evidence to the AAT without a professional immigration lawyer.
·I feel that my appeal will not going to review in fare way, and I may not able to have equal opportunity in my hearing.
·Due to time difference interstate and Broome, I am not able to find qualified immigration lawyer within a short period of time and am not confidence to attend my hearing on 18th March 2020.
·Therefore, you are kindly requested to consider my current situation and request AAT (Melbourne branch) to adjourn my appeal for another date please.
The letters referred to above and replicated in paragraphs 23 and 24 above were of course uploaded to the Casemate system and placed on the Tribunal file for consideration by the constituted member.
The Tribunal turns to consider these further requests. The request is for the Tribunal to grant an adjournment for an unspecified time so that the applicant might find and retain a suitable immigration lawyer.
As outlined above in paragraph 21 the High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The applicant has had since 26 February 2020 the opportunity to find and retain a lawyer or migration agent to act on his behalf. This date is significant because it is the date the Tribunal informed the applicant of the passing of his then nominated representative and authorised recipient. Since that time the applicant has had the opportunity to retain a lawyer or MA and give instructions. For the reasons outlined in paragraph 22 above the Tribunal is satisfied the applicant has had ample opportunity to find and retain a lawyer or MA in Broome, Perth or other interstate city. The Tribunal notes further that the review application is a relatively straight forward matter. The sole issue before the Tribunal is identified in paragraph 15 above.
The legislative scheme governing the Migration and Refugee Division (MRD) of the Tribunal gives only a limited role to advisers at the Tribunal hearing. In practice, advisers are generally permitted to be present and to participate at the hearing. This is usually limited to the making of oral submissions at the end of the hearing. In the review application the Tribunal has made repeated requests of the applicant to provide relevant documents 7 days prior to the hearing. The applicant has not provided those documents. The applicant is required in his application for review to provide only one document that being a document that is evidence of compliance with r.187.233(3).

On 13 March 2020 the Tribunal advised the applicant the applications for adjournment were refused.
The applicant has not provided any relevant information or documentation to the Tribunal arising out of the multiple requests that he provide relevant information or documentation.
There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.
Accordingly the requirements of Cl.187.233 are not met.
Secondary Applicants
The secondary applicants are members of the family unit of the applicant. As the secondary applicants are not members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.187.311 is not satisfied.
As cl.500.311 is not satisfied by the secondary applicant, the Tribunal finds the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied. Therefore the Tribunal refused the application by the secondary applicant for a Regional Sponsored Migration Scheme (subclass 187) visa.
CONCLUDING PARAGRAPH (ALL ISSUES)
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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Mark Bishop
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.

[2020] AATA 904

18 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Natural Justice

Jurisdiction

Statutory Construction