KASHYAP (Migration)

[2020] AATA 840

KASHYAP (Migration) [2020] AATA 840 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr TEHAL SINGH KASHYAP
Mrs LATA DEVI
Mr AKSHAY KUMAR
Miss MONICA KUMARI
Miss DIKSHA

CASE NUMBER:  1727017

HOME AFFAIRS REFERENCE(S):          BCC2017/1246437

MEMBER:Karen McNamara

DATE:20 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 20 March 2020 at 10:49am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination ­­– nomination refused – unique or exceptional circumstances – unique Indian sweet making skills – economic impact on business – no corroborative or compelling evidence before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 and Border Protection (the delegate) on 24 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 2 April 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant Mr Tehal Singh Kashyap (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations which required Mr Tehal Singh Kashyap to be the subject of an approved nomination. The delegate found that the nomination lodged by GRM Corporation (Aus) Pty Ltd ATF Gurmeet Ram Mehmi Trust (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 21 August 2017.

6. Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.

7. The delegate also found that the second, third, fourth and fifth named applicants could not be granted Subclass 186 visas, as they did not meet the secondary visa criterion (cl.186.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. The applicants applied to the Tribunal on 3 November 2017 for review of the delegate’s decision.

9. Mr Tehal Singh Kashyap appeared on behalf of the applicants at the hearing. Mr Kashyap appeared before the Tribunal on 6 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator Mr Gurmeet Ram in the related matter for the nomination application (AAT Case file 1721221). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.186.223.

    Nomination of a position

13. Clause 186.223 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 that was required to be made as part of the current visa application.

14. 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 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.

15. The applicant attended the hearing on the 6 February 2020. It was a combined hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.186.223, the applicant must be the subject of an approved nomination. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal advised that it would write to the applicant advising of the decision.

16. On the 26 February 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by GRM Corporation (Aus) Pty Ltd ATF Gurmeet Ram Mehmi Trust in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.

17. On 28 February 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by GRM Corporation (Aus) Pty Ltd ATF Gurmeet Ram Mehmi Trust, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.

18. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 13 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act.

19. On 11 March 2020 the applicants wrote to the Tribunal via their representative in the following terms;

    “ ......The applicants of course acknowledge the Tribunal’s decision, made on       26 February 2020, by which the Tribunal affirmed the Department’s decision not to approve the nomination made by the applicants’ nominating employer.

    The applicants also acknowledge the issues presented by clause 186.223(2) of Schedule 2 of the Migration Regulations 1994.

    In view of the present posture of this case, the applicants renew their request that the Tribunal consider referring this matter to the Minister for the exercise of the powers of Ministerial Intervention under section 351 of the Migration Act 1958, for the reasons stated in the written submissions that have been lodged with the Tribunal and the further oral submissions that were made to the Tribunal at the hearing on 6 February 2020.”

20. The Tribunal notes that the representative’s submission of 11 March 2020 does not address the issue of whether there is an approved nomination and that the applicant has not provided any evidence to confirm that he is subject of an approved nomination.

21. Therefore, there is no evidence before the Tribunal to support that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

22. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.

23. As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.

24. There is no evidence before the Tribunal to indicate that the second, third, fourth or fifth named applicants meet the primary requirements for grant of the visa.

25. In relation to the second named applicant Mrs Lata Devi, the third named applicant Mr Akshay Kumar, the fourth named applicant Miss Monica Kumari and the fifth named applicant Miss Diksha, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicants, Mrs Lata Devi, Mr Akshay Kumar, Miss Monica Kumari and Miss Diksha, as a member of Mr Kashyap’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second, third, fourth and fifth named applicants do not satisfy cl.186.311 of Schedule 2 to the Regulations.

26. The applicant has only sought to satisfy the criteria for a Subclass 186 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 Tribunal has no alternative but to affirm the decision under review.

    Request for Referral to the Minister

27. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

28. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

29. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

30. The circumstances which the applicant purports that may be unique or exceptional in this case include, exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

    Is this an appropriate case to refer to the Minister?

31. The Tribunal has had regard to the circumstances of the applicants. Evidence before the Tribunal shows that the applicants were originally granted a subclass 457 visa on 19 July 2007 for a period of two years. On 13 May 2013 the applicants were granted a further subclass 457 visa until 13 May 2017, approved through Ministerial Intervention by the former Minister for Immigration and Citizenship, the Hon Brendan O’Connor MP. The Tribunal was told that the primary applicant Mr Tehal Singh Kashyap is unable to satisfy subregulation 186.222 of Schedule 2 of the Regulations in so far as he did not have competent English language at the time of the application. The applicants acknowledge and accept that the Tribunal does not have the authority to set aside the Department’s decision to refuse the applicants’ visa application, or to remit the matter back to the Department with a direction that the criteria for the grant of Employer Nomination visas are met.

32. The applicant has been employed by the nominator as a Cook on a full time basis since September 2007. At the hearing, the nominator told the Tribunal that Mr Kashyap specialises in the making of Indian sweets from fresh milk products. The nominator has tried to employ Australian citizens to work in this role but has been unsuccessful. The nominator told the Tribunal that the applicant is not educated and learnt his rare skill in making sweets from fresh milk products from the age of ten in India. The applicant told the Tribunal through the interpreter that he had his own sweet shop in India and that he found out about the job in Australia through a friend which he described as “his bosses brother in law’s brother”, and that he met the nominator through this friend.

33. The applicants submit that their case falls within the category of matters described in the Minister’s Guidelines on Ministerial Powers (s351,s417,s501J) that constitute “ unique or exceptional circumstances”, in particular that exceptional economic and cultural benefit would result from the person being permitted to remain in Australia. 

34. The Tribunal notes the nominator’s evidence in so far as he purports that the applicant is the only person in Australia with the unique skill of making Indian sweets from fresh milk product and in the event the applicant could not obtain a visa, the shop would be forced to close. The applicants submit that these are compelling economic and cultural reasons which warrant the Tribunal’s referral to the Minister. The Tribunal notes that there is no corroborative or compelling evidence before it to support the nominator’s claims in regard to the applicant’s unique Indian sweet making skills and the economic impact on his business if the applicant was not granted a visa.

35. The Tribunal has considered whether the circumstances the applicants outlined regarding  Mr Kashyap possessing a unique skill in preparing Indian sweets with fresh milk products and their claims that this skill is not held by anyone else in Australia, warrants referral of this matter to the Minister.

36. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

37. However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.

38. In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the Minister’s Guidelines on Ministerial Powers. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

39. The Tribunal acknowledges that there are some compassionate factors in this case in so far as the applicant and his family have been in Australia since 2007, however, having regard to all the evidence before it the Tribunal is not persuaded on balance, that it should exercise its discretion to refer this matter to the Minister under section 351 of the Act. Accordingly, the Tribunal has decided not to refer the matter to the Minister.

40. The Tribunal notes that the applicants can still make a request directly to the Minister.

    DECISION

41. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    186.223(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 1114B(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 is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.