Karki (Migration)

Karki (Migration) [2024] AATA 1112 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Aashish Karki
Ms Namrata Pokharel Karki
Mr Ansh Karki
REPRESENTATIVE:  Mrs Nilli Singh Bhandari (MARN: 2318142)
CASE NUMBER:  2314514
HOME AFFAIRS REFERENCE(S):          BCC2023/3222951
MEMBER:Amanda Mendes Da Costa
DATE:7 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 7 May 2024 at 9.30am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Accountant (General) – no approved nomination – allegations against migration agent – no contact with employers – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13
CASES
SZGJO v MIACT [2005] FMCA 1349
SZMME v MIAC [2009] FMCA 323
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 on 29 August 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 June 2023. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General) ANZSCO 221111.
The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 2 May 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 conducted by video. The Tribunal was satisfied that the applicants and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments to the Tribunal.
In making its decision the Tribunal has considered the information in both the Departmental and Tribunal files for the applicant, including the following documents which were provided to the Tribunal for the purpose of the review:
·Applicant’s statutory declaration dated 22 March 2024.
·Agent and Client Agreement dated 29 March 2022.
·Receipts for payments to My Ambition Consulting Pty Ltd.
·Appointment of Representative dated 20 February 2024.
·Email correspondence between the applicant and My Ambition Consulting Pty Ltd.
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 meets the requirements of cl 186.233 of Schedule 2 to the Regulations.
Nomination of a position
Clause 186.233 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. 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.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicants that it would seek submissions from them toward the end of the Tribunal hearing on any matter they considered relevant to the review.
The Tribunal noted that in their decision the delegate found that on 14 June 2023 the nomination application lodged by Spartan Steel Pty Ltd in respect of the applicant was refused by a delegate of the Minister.
The Tribunal discussed this information with the applicants during the hearing. The Tribunal advised them that the information is relevant to the applicants’ review application because it is a requirement for the grant of the visa that the applicant is the subject of an approved nomination in the Direct Entry stream.
The Tribunal further advised that it relied on this information in making its decision it may find that the applicant does not meet one of the requirements for the grant of a subclass 186 visa and therefore the second named and third named applicants do not meet the secondary requirements for the grant of the visa and this would mean that the Tribunal must affirm the decision under review.
The applicant’s oral evidence was consistent with the account given in his statutory declaration. He told the Tribunal that he had been a victim of fraud by his migration agent Ms Nilli Singh Bhandari (MARN 2318141) and Mr Abhinaya Bhandari of My Ambition Consulting Pty Ltd. He explained that he came to Australia in 2015 on a Student visa. After completing his Bachelor Of Accounting degree, he has been working as an Assistant in Nursing in aged care facilities. Whilst working in aged care the applicant answered an advertisement by My Ambition Consulting Pty Ltd, which offered representation in migration matters and promised applicants a success in their applications for visas granting them permanent residency.
The applicant answered one of these advertisements and met Mr Bhandari who held himself out to be a career consultant. Mr Bhandari told the applicant that whilst he and his wife (Ms Nilli Singh Bhandari jointly owned and operated the business, Ms Bhandari (who is a registered migration agent) would be responsible for the visa application. However, Mr Bhandari said that he would be responsible for the day-to-day conduct of the matter.
The applicant said he trust Mr and Ms Bhandari and believed them when they advised him that he was eligible for an employer sponsored visa. He entered into the Agreement with My Ambition Consulting Pty Ltd on 29 March 2022 which includes a requirement that the applicant pay My Ambition Consulting Pty Ltd a total of $$30,450 in exchange for My Ambition Consulting Pty Ltd preparing and lodging an application for a Subclass 186 visa for the applicant and processing all documents from the applicant and the sponsoring employer.
The applicant explained that Mr Bhandari advised him that he has secured a sponsoring employer(Commschoice Pty Ltd) for the applicant who was prepared to lodge a nomination application for the position of Accountant (general) for the applicant. Mr Bhandari told him that it was not necessary for the nominator to interview him before lodging the nomination application and he did not provide any information to the application about the nature and size of its business. The applicant further explained that he had no contact with Commschoice Pty Ltd and was never employed by that company.
When the Tribunal suggested to the applicant that he must have been suspicious about whether this proposed employment was genuine, the applicant conceded that he did have his suspicions about the nomination but trusted Mr and Ms Bhandari who were experienced in migration matters.
The applicant told the Tribunal that Commschoice lodged the nomination application for his position on 5 August 2022 and on 26 August 2022 My Ambition Consulting Pty Ltd lodged a subclass 186 visa application for himself and the second named application, based on the nomination by Commschoice Pty Ltd.
The applicant explained that on 8 December 2022 Mr Bhandari asked him to withdraw the visa application because the nomination application by Commschoice had been refused by the Department. The applicants complied with this request and withdrew their visa applications in December 2022.
My Ambition Consulting Pty Ltd subsequently offered to secure another sponsor for the applicant and on 26 May 2023 Spartan Steel Pty Ltd lodged a nomination application for the position of Accountant (General) for the applicant and on 8 June 2023 the applicants lodged applications for subclass 186 visas on the basis of the nomination application.
The applicant told the Tribunal that the situation with the second nomination was similar to that with Commschoice Pty Ltd as he was never interviewed for the position with Sparton Steel Pty ltd and was not provided with any information about the nominated position or the company. When the Tribunal suggested that the applicant must have been aware at this stage that the position was unlikely to be a genuine one, the applicant said that he was very suspicious about the matter but had already paid a considerable sum to My Ambition Consulting Pty Ltd ($30,450) and Mr Bhandari had refused to refund the money when the first visa applications were withdrawn by the applicants. The applicant said that Mr Bhandari told him that he could make another visa application for him.
When the Tribunal suggested it must have seemed strange to him that Spartan Steel Pty Ltd did not wish to interview him before sponsoring him, the applicant said he raised this with Mr Bhandari who advised that the employer trusted him to recommend suitable employees to the company.
When the Tribunal fixed this matter for hearing the applicant requested My Ambition Consulting Pty Ltd to provide him with all the supporting documents submitted to the Department in support of his visa application. When he received those documents, he was surprised to discover that Mr Bhandari fabricated all of the documents from overseas including work experience documents. Based on these documents, Mr Bhandari claimed work experience for the applicant which is untrue.
The applicant explained that he only became aware that he had been the victim of fraud after seeking advice from a lawyer. I then learned that he was not an eligible candidate for a subclass 186 visa because he did not meet the criteria requiring him to have three years’ experience as an Accountant. The applicant claimed that he was completely unaware of the basis on which Mr Bhandari made the current and previous visa applications.
Findings regarding the validity of the visa application
Based on the evidence before it, the Tribunal is satisfied that the applicant gave authority to his agent (My Ambition Consulting Pty Ltd) to lodge the visa applications on his behalf and to claim Commschoice Pty Ltd and Spartan Steel Pty Ltd as his proposed nominators. The Tribunal notes that when he gave such authority the applicant had not been interviewed by either nominator, had no knowledge of the duties involved in the nominated positions or the nature and size of the businesses involved. The Tribunal is concerned that the applicant did not make any enquiries regarding these matters before the visa applications were lodged.
Accordingly, the Tribunal concludes that the applicant wanted a permanent visa and was not very particular as to how it was obtained. The Tribunal finds that he was indifferent as to the nominated employment and the circumstances of the nominator. His instructions to his agent were general and he left the details to Ms Bhandari and Ms Bhandari and allowed them to do whatever was necessary on his behalf to obtain this aim.
The applicant argues that he was not complicit in the fraud of his migration agent. However, the fact that the applicant was not complicit in the fraud or did not actively engage in the fraud does not resolve the matter in favour of the applicant. The applicant’s lack of involvement and preparedness to leave the matter to his agent without further enquiries when he was suspicious of the arrangements, leads the Tribunal to find that there was a connection between the applicant and the visa applications submitted by My Ambition Consulting Pty Ltd, and in particular the current visa application.
The Tribunal finds that in relation to the current visa application, the applicant instructed another person to make an application on his behalf and paid a fee for the service. It was open to the applicant to make enquiries about the nature of the application and the proposed nominator but did not do so. The applicant was indifferent to the nature or content of the application and the manner in which his migration agent went about applying for the visa. He made no enquiries, conducted no checks, and asked not questions about either the nominator or the nominated position. Having regard to these circumstances, the Tribunal is satisfied that the applicant has made a valid application for a subclass 186 visa: (See SZGJO v MIACT [2005] FMCA 1349 and SZMME v MIAC [2009] FMCA 323).
Findings regarding the requirements of cl 186.233
Based on the evidence in the Departmental and Tribunal files, the Tribunal finds that on 14 June 2023 the nomination application lodged by the nominator Spartan Steel Pty Ltd in respect of the applicant was refused by a delegate of the Minister. This means that the position nominated by the applicant in his current visa application is not the subject of an approved nomination.
Therefore, cl 186.233 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 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.
Given its findings regarding the applicant the Tribunal is not satisfied that the second named and third named applicants meet the secondary requirements for the grant of Employer Nomination (Permanent) (Class EN) visas.
Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The applicants submit that the following matters are relevant to their request for Ministerial Intervention:
·After arriving in Australia in 2015 the applicant has successfully completed a Bachelor of Accounting degree. He has been working as an Assistant in a nursing home since graduation. The second named applicant is also employed as a carer in an aged care facility.
·The applicants have made a valuable contribution to caring for elderly and vulnerable Australian, particularly during the Covid-19 pandemic.
·The applicants have a 19-month-old child (the third named applicant) who is totally dependent on his parents for his care and financial support. The applicant also provides financial assistance to his father.
·The applicants have no savings or property in Nepal and paid all of their savings in Australia to My Ambition Consulting Pty Ltd for the visa applications. They do not have the financial ability to re-establish themselves in Nepal if required to return to that country.
The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). It accepts that if the visas are not granted and the applicants are required to leave Australia, it will cause them financial difficulties in relocating it does not consider that the applicant’s actions in relation to the visa application warrants Ministerial intervention. Accordingly, the Tribunal has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Amanda Mendes Da Costa
Member

ATTACHMENT A
186.233(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Direct Entry stream; and
(iii)seeks to meet the requirements of subregulation 5.19(10); and
(b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

[2024] AATA 1112

7 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice