Jatoonah (Migration)

[2018] AATA 5526

Jatoonah (Migration) [2018] AATA 5526 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Neroo Jatoonah
Mrs Jayantee Jatoonah
Mr Somesh Jatoonah

CASE NUMBER:  1721212

DIBP REFERENCE(S):  CLF2012/132638

MEMBER:John Cipolla

DATE:12 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.

Statement made on 12 November 2018 at 9:22am

CATCHWORDS
MIGRATION – Employer Nomination (Residence)(Class BW) visa – Subclass 856 (Employer Nomination Scheme) – nomination refused – judicial review – jurisdictional error – young family – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 375A, 376
Migration Regulations 1994, r 5.19, Schedule 2, cls 856.212, 856.213, 856.221

CASES

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

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 Immigration on 14 November 2013 to refuse to grant the applicants Employer Nomination (Residence) (Class BW) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 June 2012 on the basis of the first named applicant's (the applicant) proposed employment in the position of Sales and Marketing Manager. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(2) of the Migration Regulations 1994 (the Regulations), the relevant subclass in the present case is Subclass 856. The criteria for this visa subclass are set out in Part 856 of 5.19

4. 2 to 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.

5. The delegate refused to grant the visas because the applicant did not meet cl.856.221 as the nominated appointment identified at the time of application had not been approved as required by cl.856.221(a) of Schedule 2 to the Regulations.

6. The applicant sought merits review on 19 November 2013. The Tribunal (differently constituted) affirmed the decision of the Department on 25 August 2014. The Tribunal found that the applicant did not meet the requirements of cl.856.212 or cl.856.213(b)

7. The applicant sought judicial review of this decision. The Minister conceded that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh[2016] FCAFC 183 in circumstances where the delegate of the Department had issued a certificate pursuant to Section 375A of the Migration Act on 28 November 2013 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal and at least some of the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

8. The applicants appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr George Matar, who is the applicant’s employer.

9. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

11. At the outset of the review hearing the Tribunal made reference to the history of this review. The Tribunal noted that the applicants applied for Subclass 856 visas on 20 June 2012 under the Employer Nomination Scheme. The Tribunal noted that the primary visa applicant had been nominated for appointment to the position of Sales and Marketing Manager by GMS Petroleum Pty Ltd. The other applicants were included in the application as family members. The Tribunal noted that on 8 October 2013 the nomination was refused. The Tribunal noted that the application was refused by the delegate on the basis that cl.856.221 was not satisfied because the nominated appointment identified at the time of application had not been approved as required under cl.856.221(a).

12. The Tribunal made reference to the previously constituted Tribunal’s decision at merits review finding that the applicant did not meet the requirements of cl.856.212 or cl. 856.213(b) of the Regulations.

13. The Tribunal noted the basis of the remittal, namely that the previously constituted Tribunal failed to disclose the existence of a Section 375A certificate.

14. The Tribunal noted that a s.375A certificate had been issued by the Department of Immigration on 28 November 2013. The Tribunal noted that on 10 October 2017 a Departmental delegate revoked the certificate dated 28 November 2013 on the basis that the original certificate was invalid because it did not provide sufficient reasons for non-disclosure on public interest grounds. The Department then proceeded to issue a Section 376 certificate. The Tribunal advised the applicant that it had regard to that certificate and concluded it was a valid certificate. The Tribunal stated that it was happy to divulge to the applicant the gist of the certificate, namely that it related to a dob in letter and that the Department was concerned that disclosure of the persons details would be contrary to the public interest.

15. The Tribunal noted that on a preliminary review of the evidence before it that the nominated appointment identified at the time of application had not been approved as required under cl.856.221(a). This fact was conceded to by the applicant’s representative.

16. The Tribunal noted that prior to the hearing, a registry officer had been advised that if the Tribunal was prepared to refer the matter for Ministerial Intervention the applicant would consent to the Tribunal making a decision on the papers.  However that if it was not disposed to do so the applicant would like an opportunity to provide evidence at a hearing.

17. During the review hearing the Tribunal took evidence from the applicant’s employer Mr George Matar who confirmed that the applicant had been working for him in his petrol station for 10 years and was a valued and trustworthy employee.

18. The Tribunal made extensive reference at the review hearing to the Ministerial Guidelines as to what is referable to the Minister on the basis of a Ministerial Intervention request.

19. Whilst the Tribunal made reference to the relevant considerations for a referral to the Minister, the applicant’s representative asked for a two-week period post hearing to provide further evidence to the Tribunal pertaining to a prospective referral of the matter to the Minister. The Tribunal consented to this request.

20. On 31 October 2018 the Tribunal received a post hearing submission with a number of attachments. The submission noted that the basis on which the applicant was seeking Ministerial Intervention pertained to compassionate circumstances regarding the age of the applicant his health and psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. The submission noted that the applicant consisted of the primary visa applicant who is age 47, his wife age 37 and their 13-year-old son.

21. With regard to the applicant’s son Somesh (Ricky) the submission noted that he had spent his formative years in Australia from the age of 3 and that given his current age of 13 he was likely to suffer with mental and emotional effects if he was relocated to Mauritius. In support of this assertion was a report from a psychologist Philip Wolfers dated 29 October 2018. The report notes that:

    Ricky has spent all his formative years in Australia, from age 3 to the present, apart from a few months. He has demonstrated to me that culturally, linguistically and emotionally he is very much an Australian, and to remove him to Mauritius would be very deleterious to him. He would find it extremely difficult to adjust to the conditions in Mauritius, particularly as he has no French. Already behind educationally, the requirement to learn French before he could even begin to study at school, with no learning support, ensures that his education would be severely damaged by returning to Mauritius”.

22. The report goes on to note that there is no way that the applicant’s son would be able to receive adequate care for any mental health problems that may well arise upon his return to Mauritius. The report also makes reference to the fact that due to the primary visa applicant’s age that it would be extremely difficult for him to find ongoing employment in Mauritius. The submission notes that an alternate ground to consider referring the matter to the Minister would be exceptional economic, scientific, cultural or other benefit that would result from the applicant being permitted to remain in Australia. To this end the submission notes that the applicant works for an Australian sponsor and has been employed with the sponsor for over 10 years. The Australian owner of the business ( a petrol station in Sydney) is heavily reliant on the applicant for sales and marketing and managerial duties.

23. In summary the submission notes that the applicant and his family have spent an extended period in Australia and that if they were to return to Mauritius it would cause serious, ongoing and irreversible harm and continuing hardship to them.

24. As noted the submission contained a number of attachments including a psychological report from Mr Philip Wolfers who assessed the applicant’s wife and son. The Tribunal has had regard to the findings which conclude that;

    “In this report I advised that is my professional conclusion that Ministerial Intervention for Mr Jatoonah’s request to be granted a visa to remain in Australia with Mrs Jatoonah and Ricky should be granted, as Mr and Mrs Jattonah and their son Ricky are likely to suffer psychological, social, economic and emotional harm. Ricky will also suffer great educational harm and will be unable to access mental health support if he requires it again, as is likely. Ricky has spent all his formative years in Australia and would be unable to cope in Mauritius especially because of his learning difficulties. The family unit will suffer significant psychological, economic, educational and in my professional opinion emotional/social hardship if they have to leave Australia”.

25. The submission also included general information about Mauritius and its mental health care delivery from a World Health Organisation a report from 2011; a job search of current positions in Mauritius indicating that the advertised occupations appeared to have an age limit of 45 and documents pertaining to education in Mauritius.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in the present case is whether the applicant meet the relevant criteria for the grant of a Employer Nomination (Residence) (Class BW) visa.

    Approval of appointment

27. Clause 856.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(2) of the Regulations, and still be available to the applicant.

28. As discussed the nomination by GMS Petroleum was refused by the Department on 8 October 2013 a decision that was affirmed by the Tribunal at merits review on 14 November 2014.

29. The applicant has only sought to satisfy the criteria for a Subclass 856 visa. No claims have been made in respect of the other visa in the class. As the applicant has not met the criteria for a Subclass 856 visa, the decision under review must be affirmed.

30. The Tribunal has considered the request to refer the matter to the Minister, and after considering the post hearing submission and the supporting documents along with the Ministerial referral guidelines has decided not to refer this matter to the Minister.

31. There is nothing to preclude the applicant from pursuing an application to the Minister and the Tribunal notes the applicant will be assisted in this request by his migration agent.

    DECISION

32. The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.

    John Cipolla

    
    

    Senior Member