KAUR (Migration)

[2017] AATA 1873

KAUR (Migration) [2017] AATA 1873 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manjit Kaur
Mr Jagdeep Singh
Master Gurshan Singh Pandher

CASE NUMBER:  1711871

DIBP REFERENCE(S):  BCC2016/1793988

MEMBER:Katie Malyon

DATE:13 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 13 October 2017 at 11:25 am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Nomination withdrawn – Medical treatment for husband

LEGISLATION

Migration Act 1958, ss 65, 351, 417, 501J

Migration Regulations 1994, r 1.13A, r 1.13B, cl 187.233

CASES

Hasan v MIBP [2016] FCCA 104
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105

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 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 to the Department of Immigration for the visas on 20 May 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, the first named applicant is Indian national Mrs Manjit Kaur.  Mrs Kaur is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook ANZSCO 351411.  This stream is designed for persons who have never, or have only briefly, worked in the Australian labour market and are applying for the visa outside Australia or, as in this case, are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application lodged on 20 May 2016 by A to Z Catering Solution Pty Ltd (AZ Catering) for the position of Cook which relates to Mrs Kaur was not approved because it was withdrawn on 3 April 2017.  A copy of the delegate's decision was provided to the Tribunal.

6. The applicants appeared before the Tribunal on 12 October 2017 by way of teleconference from Griffith in regional NSW to give evidence and present arguments.  Evidence was received from Mrs Kaur and her husband Mr Singh, the second named applicant.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations.

   Nomination of a position

9. For applicants in the Direct Entry stream, cl.187.233 of Schedule 2 to the Regulations requires that the position to which the visa application relates is the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination for a position in regional Australia) or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations and which was required to be made as part of the visa application. The provisions of cl.187.233 of Schedule 2 to the Regulations are extracted in the Attachment to this decision.

10. In addition, this criterion also requires that:

    ·the person who will employ the visa 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 r.1.13A and r.1.13B of the Regulations), or it is reasonable to disregard any such information;

    ·the position is still available to the visa applicant; and,

    ·the visa application was made no more than 6 months after the nomination of the position was approved.

11. As indicated in the delegate's decision, a copy of which was provided to the Tribunal, the application for approval of the nominated position of Cook in respect of Mrs Kaur made by AZ Catering was withdrawn. 

    Hearing

12. At the commencement of the hearing, the Tribunal explained the requirements in cl.187.233 of Schedule 2 to the Regulations and identified the issue in the review is whether the relevant nomination has been approved.

13. The Tribunal also observed that, in the recent Full Federal Court of Australia decision in Singh v MIBP,[1] the Court held that the words in cl.187.233 of Schedule 2 to the Regulations refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, it is a “once off” process.[2]  The Court observed that even a new nomination in respect of the same position made by the same employer could not be relied upon to meet this Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration in the visa application was made (emphasis added). The Tribunal also noted that it has no discretion and must apply the law.

    [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229.

    [2] [2017] FCAFC 105, Mortimer J at [90].

14. The Tribunal noted that, in her Application for Permanent Employer Sponsored or Nominated Visa in the Department’s file, Mrs Kaur had affirmatively declared that:

    “the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection.  (Note: This application will not be valid if the details provided cannot be matched to a nomination that has been lodged with the Department of Immigration and Border Protection).”

15. Furthermore, in her Subclass 187 visa application, the Tribunal observed that Mrs Kaur had provided details of the transaction reference number for the related nomination lodged by AZ Catering on the same day that she lodged her visa application.  This is the nomination which was withdrawn by AZ Catering on 3 April 2017.

16. Mrs Kaur told the Tribunal she did not know that AZ Catering had withdrawn its nomination until after she was advised by the representative for the company: it was the same representative who assisted her with her Subclass 187 visa application.  Mrs Kaur said apparently the business was experiencing some problems and so it chose to withdraw the nomination rather than have it refused.  She said that she has found a new company willing to nominate her and that an application for nomination approval was lodged nearly 5 months ago, she expects approval to come through in one or 2 months.  Mrs Kaur added that all she needs is a bit of time as she is confident the nomination will be approved and the opportunity to remain in Australia will allow her husband to receive further medical treatment. 

17. In relation to her comment regarding medical treatment for her husband, Mrs Kaur explained that she sought review in the Tribunal just to give her more time, simply because her husband had suffered a serious work injury.  He has lost 2 fingers and almost lost his thumb 12 months ago and, as a result, has had ongoing health issues.  He regularly sees a doctor in both Wagga Wagga and Sydney and anticipates further surgery on his hand in the near future.  Mrs Kaur added that the option of returning to India was ‘not real’ because insurance in Australia covers her husband’s injuries.  She said he has totally lost use of one hand and cannot feel anything in the remaining fingers of that hand: he has managed to return to work using his one good hand only.  Mr Singh gave brief evidence to the Tribunal confirming he has had a big operation and that his injury has meant the family has had a lot of trouble. 

18. On the evidence before it, the Tribunal finds that the nomination application lodged on 20 May 2016 by AZ Catering associated with the position of Cook for nominee Mrs Kaur was withdrawn on 3 April 2017. Therefore, Mrs Kaur does not meet cl.187.233(3) of Schedule 2 to the Regulations. Accordingly, cl.187.233 is not met.

19. Mrs Kaur 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.

20. There is no evidence before the Tribunal to indicate that the second named applicant, Mrs Kaur’s husband Jagdeep Singh, meets the primary requirements for the grant of the visa.  Nor does her 4 year old son, the third named applicant.

    Is this an appropriate case to refer to the Minister?

21. 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.

22. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration 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.

23. 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.[3]  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 (emphasis added).  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include, relevantly, where:

    “compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuous hardship to the person (emphasis added)”.

    [3] Available at

24. Departmental records confirm a new nomination application for the position of Cook in regional NSW was lodged on 26 June 2017 identifying Mrs Kaur as the nominee.  However, no documentation has been provided to the Tribunal in relation to her husband’s injury, his prognosis and his need to rely on insurance in Australia to cover the cost of treatment.  In the circumstances, the Tribunal has insufficient documentation to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the guidelines published by the Minister in PAM3 Minister’s guidelines on ministerial powers (s351, s417 and s501J).  

25. It is the Tribunal’s opinion that, if Mrs Kaur wishes to seek ministerial intervention, it is open to her to provide a submission and evidence to the Minister for his consideration.  No doubt her representative could assist in this regard. 

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994
    
    

    Schedule 2

    Part 187

    …

    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.

    oOOo