Kaur (Migration)

[2021] AATA 5541

Kaur (Migration) [2021] AATA 5541 (23 August 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Balraj Kaur

CASE NUMBER:  1724073

HOME AFFAIRS REFERENCE(S):           BCC2017/242467

MEMBER:  Phoebe Dunn

DATE:  23 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 23 August 2021 at 5:09pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Web Administrator – no approved nomination – significant ties to the Australian community – existing period in the nominated position – request for Ministerial Intervention – impact of the COVID-19 pandemic – Australian permanent resident partner with disabilities – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 186.223, 186.233; rr 1.13, 5.19

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 on 15 September 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 18 January 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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.

1. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Web Administrator (ANZSCO 313113).

1. The delegate refused to grant the visa because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the related nomination application by The Trustee for VR Telepoint (the nominator), being the nomination referred to in cl 186.233(1) (the nomination), was refused by a delegate of the Minister and as such there was no approved nomination.

1. By letter dated 24 July 2020, the applicant was invited to attend a video hearing scheduled for 11 August 2020. On 4 August 2020, the Tribunal received a request for the hearing to be postponed on the basis that the applicant was unable to attend the scheduled hearing due to lockdown restrictions in Victoria and technical difficulties with attending from her home. The Tribunal postponed the hearing to a date to be determined. By letter dated 3 February 2021, the Tribunal invited the applicant to a rescheduled hearing, to be conducted in person on 3 March 2021.

1. The applicant appeared before the Tribunal on 3 March 2021 to give evidence and present arguments. The applicant was invited to a further hearing scheduled for 3 August 2021 but declined the hearing invitation.

1. The applicant was represented in relation to the review by her lawyer and registered migration agent, Mr Badrinath Thungathurthi. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

1. In advance of the hearing, the Tribunal received submissions dated 3 March 2021 addressing the requirements relating to approval of the related nomination and noting the following in relation to the nominee:

a.The applicant should not be penalised by refusing her visa for matters over which she has no control;

b.The applicant has been in Australia for more than 12 years and has deep ties to the Australian community;

c.The applicant’s partner is a permanent resident of Australia; and

d.The applicant has been a law-abiding resident over a substantial period.

1. At the hearing, the applicant gave detailed oral evidence about the history of this matter and her current circumstances. She stated that she has a Bachelor in Computer Science and a Master of Computer Application which she attained in India. She stated that she got the job with the nominator after applying through a job advertisement. She stated that she commenced full time with the business when her Subclass 457 visa was approved on a salary of $52,000 plus superannuation and that this increased a few years ago to $54,000. She stated that she works standard business hours from the office and prior to the COVID- 19 pandemic would occasionally work from home. She gave a detailed description of her duties and identified the key clients of the business. She stated that the business engages outside services to provide support while she is on annual leave.

1. At the hearing, the Tribunal noted the reasons for refusing the related nomination, being that the delegate was not satisfied that the applicant had been working full time in the nominated position for at least two years in the three years immediately preceding the nomination application. The applicant sought further information from the applicant to be provided post hearing, including copies of her bank account and superannuation statements for the relevant period, to be provided by 26 March 2021. The Tribunal invited the applicant to provide further details regarding her leave taken at the time that the Department undertook the site visit of the nominator. The applicant stated that she was on annual leave at the time of the site visit for approximately 4 weeks, from February 2017 to March 2017.

1. At the hearing, the Tribunal raised information with the applicant that the Tribunal considered would be the reason or part of the reason for affirming the decision under review, in accordance with the requirements of s 359AA of the Act, as follows:

a.The particulars of the information are that the Tribunal recently affirmed a decision of the Department to refuse a nomination application by the same nominating business in Tribunal file 1717551 on the basis that it did not meet the requirements for approval of the nomination in reg 5.19(3)(f) relating to the nominator’s training benchmark commitments and obligations.

1. The Tribunal noted that this information was potentially adverse to the applicant’s case as if the nominator is relying on the same information to establish compliance with reg 5.19(3)(f) in relation to the relevant nomination for the nominated position of Web Administrator it could mean that the nominator does not meet the same requirements in relation to the nomination that applies to the applicant’s Subclass 186 visa application in Tribunal file 1718318. The Tribunal explained that the relevance of this information is that it is a requirement for the grant of a Subclass 186 visa that the related nomination application has been approved and that if the Tribunal relies on this information in reaching a decision on the nomination application related to the applicant’s case, it may find that the nominator does not meet the requirements of reg 5.19(3)(f) and as such must affirm the nomination, which in turn would

mean that the applicant will not meet the requirements of cl 186.223(2) of the Regulations and that this would be the reason or part of the reason for affirming the decision under review. The Tribunal invited the applicant to comment on or respond to the information or seek additional time to comment on or respond to the information.

1. In response, the applicant stated that she had worked full time in the nominated position since commencing in 2013 and continued to do so. The applicant’s representative stated that they had not yet received notice from the Tribunal advising that the decision in relation to Tribunal file 1717551 had been affirmed on review. The Tribunal noted that it had requested further information from the applicant to be provided by 26 March 2021 and invited the applicant to make further submissions addressing the issues raised under s 359AA with that information.

1. The Tribunal received further submissions and supporting documentation from the applicant on 25 March 2021 and 26 March 2021, which have been carefully considered by the Tribunal in this review. These include the following:

a.Accountant’s letter dated 19 March 2021 attesting to the nominator paying the nominee her wages and superannuation in accordance with its requirements from 2013 to December 2020;

b.Assortment of payslips from 8 September 2014 to 17 April 2016;

c.Reference letter from Omnific Design attesting to the nominee working in the nominated position;

d.Nominee bank statements form 1 July 2013 to 11 September 2016;

e.Messages log showing conversations between the nominee and her employer in 2015 and 2016; and

f.Various emails in 2013 relating to an office Christmas lunch in December 2013;

g.Images and information relating to a flooding of the offices of the nominator;

h.Superannuation account balance statement at 24 March 2021; and

i.Submission dated 25 March 2021 addressing the issues raised under s 359AA of the Act at the hearing in respect of the nomination and noting the following in relation to the applicant:

i.    The applicant has worked for the nominator full time for seven years and has received regular salary and superannuation contributions in accordance with her contract and legislative requirements;

ii.The nominator met its training benchmark commitments and obligations;

iii.The applicant has been a law abiding citizen, has never breached her visa and has been in Australia for more than 12 years with deep ties to the Australian community;

iv.The applicant’s partner is a permanent resident of Australia;

v.The applicant requests that the Tribunal consider her application on compelling and compassionate grounds due to current circumstances beyond her control;

vi.The applicant has no control over the errors of the nominator in relation to training benchmark commitments and obligations and should not be punished for those minor errors;

vii.An adverse decision will ‘drastically effect, disturb my family life, cause distress to me and my young family’; and

viii.The applicant’s employer complied with all workplace relations laws and has supplied all documents requested by the Tribunal.

1. On 1 July 2021, the Tribunal wrote to the applicant in accordance with the requirements of s 359A of the Act, inviting the applicant to comment on or respond in writing to information that the Tribunal considered would be the reason or part of the reason for affirming the

   decision under review, being that the related nomination has been affirmed on review by the Tribunal on 30 June 2021. The Tribunal explained in its letter that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the applicant’s visa application is the subject of an approved nomination and that if the Tribunal relied on this information in making a decision, the Tribunal may find that the position specified in her visa application is not the subject of an approved nomination and that this would be the reason or part of the reason for affirming the decision under review.

1. The applicant responded within the prescribed timeframe, making the following submissions:

a.She has the requisite qualifications to undertake the nominated position and was granted a Subclass 457 visa on 17 May 2013 to work in the nominated position. The applicant has been working continuously in the nominated position from 1 June 2013 as evidenced by her bank statements. ‘With apprehension and unproved allegations against my employer, we request the honourable member not to deny my visa’;

b.The applicant has been in Australia for more than 12 years and has deep ties to the Australian community. Her partner is an Australian citizen. She has been a law-abiding resident and has worked for the nominator since 2013, proving to be a valuable employee:

Accordingly, the harm I suffer from the cancellation of my visas would be humongous than for the ordinary visa holder, as it would have the effect of denying me Australian visa which would otherwise be granted imminently. I have fulfilled the purpose of the visa, I am working hard for an Australian business, contributing my skills and ultimately to become part of the Australian community. I have made considerable sacrifices to establish myself in Australia.

c.The applicant should not be punished or penalised in the form or visa refusal from any adverse findings from the activities of her employer or for her employer’s minor mistake over which she has no control;

d.The applicant is experiencing feelings of depression as a consequence of her current circumstances and the ‘consequent loss of the opportunity to be granted citizenship’;

e.The applicant has proven to be a trustworthy and reliable employee, helping the community with skills and social work and building deep ties over the last 12 years; and

f.The applicant is requesting that the visa ‘not be denied’ on compassionate grounds on the basis that it would affect her partner who is an Australian citizen. The applicant states that relocation to her home country is not reasonable in the circumstances and requests that consideration be given to ‘humanitarian grounds’ as a result of her connection to Australia over a substantial period, her Australian citizen husband and her ‘upcoming’ family:

If I were not granted a visa, my partner would be deprived of emotional support and significant business, economic, cultural or other development to my employer and Australian society at large.

1. Having regard to the submissions received from the applicant, by letter dated 15 July 2021, the Tribunal invited the applicant to a further hearing of this matter scheduled for 3 August 2021 and invited the applicant to make further submissions in support of her case, including submissions and any supporting evidence addressing the Ministerial Intervention powers in s 351 of the Act. The Tribunal referred the applicant to the Ministerial Intervention guidelines published on the Department’s website for guidance on the types of submissions and supporting documents that may support a Ministerial Intervention request.

1. On 28 July 2021, the Tribunal received a request from the applicant’s representative that the hearing be postponed for a further two weeks on the basis that the applicant’s de facto partner is disabled and sick and that she should take extra precautions for fear of getting infected by the Delta variant of the COVID-19 virus if she left her house to attend the hearing. The applicant’s representative noted they would be submitting further documents addressing the s 351 Ministerial Intervention powers. In response, by letter dated 30 July 2021, the Tribunal stated that it had considered the request and had decided to convert the scheduled hearing to a video hearing and invited the applicant to attend the scheduled hearing by video. The Tribunal received an email on 30 July 2021 from the applicant’s representative, stating as follows:

My client’s Instructions:-

1.     My client recently attended in person for hearing at AAT and also submitted abundant Information and documents as per your earlier request.

2.     We were instructed by the applicant, due to her Disable Australian partner health issues, fear psychosis and stress caused due to pandemic my client cannot attend the hearing in person or in Teams.

3.     If you are unable to decide on the information you hold, please write to us she would like to submit further documentation in support of her application.

1. The Tribunal made contact with the applicant’s representative requesting confirmation that the applicant intended to decline the hearing invitation and was consenting to a decision being made on the papers. The Tribunal referred the applicant’s representative to the hearing invitation for guidance about the type of information the applicant may wish to submit in support of a request for Ministerial Intervention under s 351 of the Act. On 30 July 2021, the applicant then responded to the hearing invitation, declining the invitation and consenting to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.

1. By letter dated 30 July 2021, the Tribunal wrote to the applicant noting that the applicant had declined the hearing invitation and consented to a decision on the papers. The Tribunal noted that the Tribunal would not be making a decision on the case before 13 August 2021 and invited the applicant to submit any additional information, documents or submissions she may wish to rely on in support of her case before 13 August 2021. The applicant did not respond to the Tribunal’s letter and no further information or documentation has been submitted to the Tribunal.

Nomination of a position

1. 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.

1. 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 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.

1. The applicant applied for the Subclass 186 visa application on the basis of the nomination made by the nominator for the nominated position of Web Administrator. The Subclass 186 visa was refused because the nomination was refused and as such the applicant did not meet the requirements of cl 186.223(2) of the Regulations.

1. The nominator applied for review of the decision to refuse the nomination application. On 30 June 2021, the Tribunal affirmed the decision on review. This means that there is no approved nomination and no longer a review application on foot before the Tribunal.

1. The Tribunal has carefully considered the applicant’s submissions made to the Tribunal during the course of this review and as summarised in this decision. The Tribunal notes and accepts the applicant’s oral and written submissions made to the Tribunal during the course of this review, including that her visa was refused at first instance through no fault of her own, that she has been living and working in Australia for over 12 years and that she is suffering mentally and physically as a consequence of the uncertainty of her visa situation. Notwithstanding this, and as identified with the applicant, the question before the Tribunal is whether there is an approved nomination for the purposes of cl 186.223(2) and this is a question of fact in respect of which the Tribunal has no discretion, irrespective of any feelings of sympathy for the nominee. In this case, the nomination was refused at first instance and that decision was affirmed on review before the Tribunal and this means that the applicant does not meet the requirements of cl 186.223(2) of the Regulations.

1. As such, and following careful consideration of the evidence before it, the Tribunal finds that the applicant does not meet the requirements of cl 186.223(2) of the Regulations.

1. Therefore, cl 186.223 is not met.

1. 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 decision under review must be affirmed.

Ministerial Intervention

1. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister 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 consistent with s 351 of the Act.

1. 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.

1. 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. The circumstances which may be unique or exceptional in this case include, relevantly:

·     strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident (Ground 1);

·     circumstances regarding the applicant’s age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship (Ground 2); and

·     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 a particular case (Ground 3).

1. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

1. The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those 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. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.

1. While the applicant has not formally requested that the Tribunal refer the matter to the Minister for consideration of the exercise of his Ministerial Intervention powers, the Tribunal

has considered the applicant’s submissions in that context. The Tribunal notes in particular the following relevant submissions:

a.The applicant has been in Australia for more than 12 years and has deep ties to the Australian community. Her partner is a permanent resident. The applicant has been a law-abiding resident and has worked for the nominator since 2013, proving to be a valuable employee;

b.The applicant would suffer ‘humongous’ harm if her visa is not granted compared to ‘the ordinary visa holder’ as it would ‘have the effect of denying me Australian visa which would otherwise be granted imminently’;

c.The applicant has fulfilled the purpose of the visa, working hard for an Australian business, contributing skills and becoming part of the Australian community and has made ‘considerable sacrifices’ to establish herself in Australia;

d.The applicant should not be punished or penalised by having her visa refused as a consequence of any adverse findings about the activities of her employer or due to her employer’s minor mistake over which she has no control;

e.The applicant is experiencing feelings of depression as a consequence of her current circumstances and the ‘consequent loss of the opportunity to be granted citizenship’;

f.The applicant is requesting that the visa ‘not be denied’ on compassionate grounds on the basis that it would affect her partner who is an Australian permanent resident. The applicant states that relocation to her home country is not reasonable in the circumstances and requests that consideration be given to ‘humanitarian grounds’ as a result of her connection to Australia over a substantial period, her Australian permanent resident partner and her ‘upcoming’ family;

g.The applicant’s employer and the ‘Australian society at large’ would suffer ‘significant business, economic, cultural or other development’ if the visa application was not successful.

1. The Tribunal also notes evidence before it, stated in recent email correspondence from the applicant’s representative, that the applicant’s ‘de facto partner’, who is a permanent resident, is disabled with health issues. The Tribunal does not have any further information regarding the applicant’s partner’s health issues or disability and the applicant did not provide further information in response to the Tribunal’s invitation to do so. Notwithstanding this, the Tribunal considers this to be a relevant consideration in the context of determining whether to refer the matter to the Minister for consideration of the exercise of his powers of Ministerial intervention.

1. In relation to Ground 1, the Tribunal accepts the applicant’s submissions that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian permanent resident, being the applicant’s de facto partner. However, the Tribunal does not consider it has sufficient evidence before it to ascertain the nature of the applicant’s partner’s health issues or disability or the extent of the applicant’s involvement in the day to day care of her partner. The Tribunal invited the applicant to make further submissions addressing the relevant criteria and referred the applicant to the Ministerial intervention guidelines for examples of the types of evidence and documentation that could support these claims, but none were

forthcoming. The Tribunal also notes the reference to the applicant’s upcoming family in the applicant’s submissions, suggestive that the applicant is either pregnant or planning a family. Again, the Tribunal does not have sufficient information before it to give this statement weight but considers it a possible relevant consideration that would add weight to the applicant’s claims against Ground 1. The Tribunal observes that the Ministerial Intervention guidelines state that the Minister has indicated it would be inappropriate to consider a ministerial intervention request from a person who may be eligible to apply for a partner visa. The applicant has not provided information to the Tribunal to establish whether the applicant has or intends to apply for a partner visa.

1. The Tribunal has also considered the applicant’s submission that the applicant’s employer would suffer hardship on the basis that the applicant has worked for her employer for seven years and he would have to find another employee to take her place. The Tribunal accepts the evidence provided but does not consider that the relationship with her employer is of the nature that would warrant intervention on the basis that there are strong compassionate circumstances that if not recognised would result in ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit. The Tribunal does not consider that needing to replace an employee and the difficulties the employer may experience in doing so is sufficient to meet this guideline, noting that it is a usual part of running a business. Further, the Tribunal does not accept that the ‘Australian society at large’ would suffer significant business, economic, cultural or other development’ if the visa application is not successful, as it does not consider there would be an impact beyond the localised impact on the business and its customers should the applicant not be successful in securing a permanent visa.

1. In relation to Ground 2, the Tribunal accepts the applicant’s submissions regarding the applicant’s health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. The applicant has noted the applicant’s submissions of the psychological hardship experienced by her relating to her visa status and depression and anxiety about the potential need to return to India in the context of the current COVID-19 pandemic. Nonetheless, the applicant has not provided documentation to support these claims of the kind identified in the Minister’s guidelines. As such, the Tribunal does not consider that it has sufficient supporting information on which to assess the applicant’s claims against this ground.

1. In relation to Ground 3, the Tribunal has considered whether the application of the legislation would lead to an unfair or unreasonable result in the circumstances on the basis the applicant’s visa application was refused solely as a consequence of the refusal of the nomination application, for reasons over which she has no control. The Tribunal accepts the applicant’s submissions but does not consider this to be of the nature to warrant referral to the Minister on this ground.

1. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but does not consider it has sufficient information before it to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

1. The Tribunal strongly encourages the applicant to make submissions specifically addressing the Ministerial Intervention power in s 351 of the Act direct to the Minister, and provide supporting documentation and evidence of the kind identified in the Ministerial guidelines.

DECISION

1. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Phoebe Dunn 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.