Kannangara (Migration)

[2021] AATA 5504

Kannangara (Migration) [2021] AATA 5504 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Achini Dilrukshi Neha Kannangara

CASE NUMBER:  1923128

HOME AFFAIRS REFERENCE(S):          BCC2018/1011591

MEMBER:Terrence Baxter

DATE:31 August 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 31 August 2021 at 8:58am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Contract Administrator – no approved nomination – financial hardship – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 2 March 2018. 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 is seeking the visa in the Direct Entry stream, to work in the nominated position of Contract Administrator for Alpha Supper Cleaning Services Pty Ltd (the nominator).

5. The delegate refused to grant the visa on 3 August 2019 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. The delegate found that the nomination lodged by the nominator was refused on 7 June 2019 and that accordingly the applicant did not satisfy cl 187.233(3) and did not meet cl 187.233 as a whole as required.

6. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dilan Rajapaksha, on behalf of the nominator.

7. The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 audio conference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether there is an approved nomination.

   Nomination of a position

10. 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.

11. 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) of the Regulations; 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.

12. Records of the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) indicate that the nominator made an application to the Department to have the position of Contract Administrator approved, with the applicant as nominee, on 2 March 2018. The nomination application was refused on 7 June 2019 and the nominator sought review of that decision with the Tribunal on 28 June 2019.

13. On 22 July 2021, the Tribunal (as presently constituted) affirmed the decision to refuse the nomination.

14. On 26 July 2021, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting her to comment on or respond to information which the Tribunal considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows:

    On 22 July 2021, the Tribunal affirmed the decision not to grant an Employer
    Nomination lodged by Alpha Supper Cleaning Services Pty Ltd.

    This information is relevant to the review because it was the nomination referred to for the purposes of satisfying cl.187.233(1).

    If we rely on this information in making our decision, we may find that you do not meet cl.187.233(3), which requires the nomination be approved, and affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 9 August 2021.

15. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. On 1 August 2021, the applicant responded to the Tribunal, stating that she intended to attend the hearing “over the phone” on 17 August 2021.

16. At the commencement of the hearing on 17 August 2021, the witness Mr Rajapaksha notified a Tribunal officer that he sought a postponement of the hearing to allow his representative to attend. The Tribunal spoke with Mr Rajapaksha regarding this request. He agreed that the nominator Alpha Supper Cleaning Services Pty Ltd was not represented in the nomination application. He withdrew his request for postponement. The applicant agreed that the hearing should proceed.

17. In support of the application, the applicant produced to the Department a copy of her passport.

18. The applicant produced to the Tribunal a copy of the delegate’s decision.

19. At the hearing, the Tribunal explained to the applicant the requirement that the nomination application by the nominator be approved and the consequences if the nomination had not been approved. The applicant agreed that she had received the Tribunal’s invitation of 26 July 2021 and stated that she was aware that there was no approved nomination.

20. The applicant stated that she continued her occupation as a Contract Administrator with the nominator, even after the initial refusal of the nomination application. She said that she had been in paid employment until January 2021 but that she has taken unpaid leave since that time. She said that she was suffering from depression and was not mentally well enough to continue to work in the position. She said that she was in a poor financial situation as a result of decisions by a third party and that she had incurred a debt exceeding $120,000. She said that the salary which she had been earning was insufficient to enable her to pay off the debt and that she had intended to try to earn additional income by starting her own business so that she could pay off her debt. She said that, if she had to return to her country of origin, she would be unable to earn sufficient income to pay off the debt.

21. Mr Rajapaksha, on behalf of the nominator, confirmed that the applicant had continued to work for the nominator even after the refusal of the nomination application. He said that she was a good employee and that it was difficult to find qualified management staff in Darwin.

22. The applicant requested that, if the Tribunal was unable to make a favourable decision on her application, she be allowed some time before a decision was delivered.

23. After the hearing, the applicant provided a submission to the Tribunal substantially confirming the evidence given by her at the hearing. She also provided documents establishing:

    a.that she still resides in Darwin

    b.her prior employment before commencing work with the nominator

    c.her current bank balances

    d.her medical condition

    e.some of her financial liabilities.

24. The Tribunal has considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support her application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

25. The Tribunal has taken into account that the applicant has been aware since 3 August 2019 of the reasons for the visa application being refused. The Tribunal has also taken into account that the delay requested by the applicant was not for the production of further evidence, but a request for a delay in the decision-making process.

26. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. The Tribunal has allowed a period of time before delivering this decision. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further.

27. The Tribunal notes that the application for nomination for the position of Contract Administrator has not been approved. Accordingly, the Tribunal finds that there is no approved nomination for the purposes of this application. Accordingly, cl 187.233(3) is not met.

28. Therefore, cl 187.233 is not met.

29. 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

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

    Terrence Baxter
    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.