Kaur (Migration)

[2020] AATA 5290

Kaur (Migration) [2020] AATA 5290 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kamaljeet Kaur
Mr Jasminder Singh
Mr Janchit Singh Grewal
Mr Anannt Singh Grewal

CASE NUMBER:  1810275

HOME AFFAIRS REFERENCE(S):          BCC2016/4258964

MEMBER:Mark Bishop

DATE:18 November 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 November 2020 at 11:49am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – request for Ministerial referral declined – Australian citizen child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 December 2016. 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 (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. The applicant provided a copy of the decision record to the Tribunal.

5. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position as outlined in the delegate’s decision. The second named applicants are members of the family unit of the first named applicant.

6. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 23 February 2018 the nomination lodged by Hospital Technologies Pty Ltd being the nomination referred to in paragraph 187.233, was refused by a delegate of the Minister for Immigration and Border Protection.

7. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

8. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is the lack of a nomination because the nomination lodged by the nominator was refused.

    Nomination of a position

11. 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.

12. On 22 October 2020 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 187 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator Hospital Technologies Pty Ltd. The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 26 February 2018.

    ·It is a requirement for the grant of a Subclass 187 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn.

    ·The Tribunal’s records indicate that the nominator lodged an application for review of the Department’s decision to refuse the nomination with the Tribunal, which the Tribunal affirmed on 17 September 2020

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 187 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 187. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 187 visa.

    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 5 November 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

13. In response to the particulars provided to the applicant as outlined in paragraph 12 above on 5 November 2020 the applicant provided the following information to the Tribunal

    ·Citizenship certificate relating to Janchit Singh Grewal (secondary applicant);

    ·A request to re-open a previously completed case on the basis the relevant MA provided incorrect information to his client;

    ·A Request for Ministerial Intervention (MI) on the grounds of Australia’s obligations under the UN Convention on the Rights of the Child;

14. The Tribunal examined Casemate in respect of case number 1807389, the related case in the current review application. That case was resolved by the Tribunal (differently constituted) on 17 September 2020.

15. On 26 February 2018 the nomination lodged by Hospital Technologies Pty Ltd, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Border Protection. On 17 September 2020 the Tribunal affirmed this decision upon review. On 15 October 2020 the applicant in that case requested in writing it be re-opened. The Member considered that request and declined to re-open the case. The Member provided detailed reasons in writing to the applicant for deciding not to re-open that case.

16. At date of decision the applicant in Case number 1807389 has not lodged an appeal. An appeal to the Federal Circuit Court of Australia is the appropriate vehicle to address an error on the part of the Tribunal.

17. The applicant in the current review application did not provide any evidence to the Tribunal that corroborated the statement as summarised in dot-point 2 of paragraph 13 above.

    Ministerial Intervention

18. The MA requested the Tribunal refer the matter to the Minister for Intervention. In a written submission the MA advised the Tribunal as follows:

    ·We note the Applicant has two children, one of the applicants children Janchit Singh Grewal is an Australian Citizen (please find attached his citizenship certificate), the child is a dependent and is 10 years old;

    ·With respect to the Australia’s obligations under its membership of the UN Convention on the Rights of the Child (CROC), we request the Tribunal to consider this matter in conjunction with the history of the case above and refer this matter to the Minister for reconsideration.

    Referral to the Minister by the Tribunal

19. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,[1] and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.

    [1] Mohammed v MIBP [2017] FCCA 2356 at [29].

20. The power under s351(1) may only be exercised by the Minister personally.[2] Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

    [2] S351(3)

21. A review Tribunal may refer a case to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

    President’s Direction

22. Members should have regard to the Ministerial Guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The Member’s views will be brought to the Minister’s attention by the Department under the guidelines.

23. The Member may refer a case to the Department on the basis that the Member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

24. The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the Member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

25. If an applicant requests a Member to refer a case to the Department and the member decides not to do so, the Member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

26. The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration. The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are inappropriate to consider. The facts of this case do not fall withing the “inappropriate to consider” guidelines.

27. The Tribunal has reviewed the list and types of exceptional circumstances that are set out in the Ministerial guidelines. The applicant has not made the Tribunal aware of any circumstances that might be characterised as follows:

    ·Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

    ·Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.

    ·You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control

28. The applicant did not address the Tribunal on the particulars of circumstances that might be relevant under the various dot-points summarised in paragraph 27 above.

    Decision re ministerial Intervention

29. In evidence to the Tribunal the MA for the applicant summarised information outlined in paragraph 13 and advised the Tribunal he sought a reference for MI on the grounds of a prior mistake and Australian citizenship of one of the secondary applicants. He did not address any part of the UN Convention on the Rights of the Child or relevant obligations of Australia.

30. There is nothing before the Tribunal to indicate there are international obligations to consider.

31. There is no material on the Tribunal file in the current review application or Case number 1807389 that suggests an error of any kind. The Tribunal (differently constituted) has already engaged in a post-decision review of the facts in Case number 1807389 and made a finding that “We made our decision in this case on 17 September 2020.The Tribunal is satisfied that all the necessary procedures under the Act have been complied with and that the decisions are not affected by jurisdictional error. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.”

32. Excluding the submission as summarised at paragraph 13 above the applicant has not provided any further material to the Tribunal that addresses or corroborates the submission as to prior error.

33. The Tribunal is not satisfied there are grounds to agree to the request for MI.

34. The Tribunal notes the applicant has the right to initiate an application to the Minister for MI.

    Conclusion re Nomination

35. In evidence to the tribunal the applicant advised she was not able to provide evidence of a current nomination. The MA for the applicant similarly advised the Tribunal.

36. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination was refused and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 187.233.

37. Therefore, cl.187.233 is not met.

    Secondary Applicants: Mr Jasminder Singh Mr Janchit Singh Grewal Mr Anannt Singh Grewal

    Mr Janchit Singh Grewal

38. A copy of the citizenship papers of Janchit Singh Grewal (DoB 28 March 2010) was provided to the Tribunal. Secondary applicant Janchit Singh Grewal is an Australian citizen.

    Mr Jasminder Singh Mr Anannt Singh Grewal

39. The above secondary applicants are members of the family unit of the applicant. They are not the members of the family unit of a person who holds the relevant visa. Accordingly they do not satisfy the criteria of cl.187.311 of the Regulations.

    CONCLUDING PARAGRAPH (ALL ISSUES)

40. 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

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