Khatoon (Migration)

[2018] AATA 5368

Khatoon (Migration) [2018] AATA 5368 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fabeeha Khatoon
Mr Mujtaba Ali Khan
Miss Zara Khan

CASE NUMBER:  1512895

HOME AFFAIRS REFERENCE(S):           BCC2014/3458247

MEMBER:Alison Mercer

DATE:2 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2018 at 5:13pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant (General) – subject of an approved nomination – nomination application refused – unique or compelling circumstances not sufficient for referral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 on 31 August 2015 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 16 December 2014. 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she was not the subject of an approved nomination by her Australian employer, the Australian Institute of Trades Pty Ltd as trustee for Institute of Hotel Management Australia. The delegate refused to grant subclass 186 visas to the second and third named applicants (the applicant’s husband and daughter) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 20 September 2015, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Mohammed Wasif Mirza, to be their representative and authorised recipient for correspondence. They subsequently appointed another migration agent, Mr Prahbhat Krishna, to this role.

7. The applicants appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. At the hearing, the applicant also provided the following documents to the Tribunal:

   ·written statement from the applicant;

   ·positive skills assessment for the applicant issued by CPA Australia Ltd for the occupation of Accountant (General); and

   ·screen shot of applicant’s enrolment at Melbourne Institute of Technology in Non-Award course for 2 accounting subjects and invoices for these.

8. In her written statement, the applicant made the following points (in summary):

   ·she and her husband moved to Australia for a better future as they had different nationalities: she was Indian while her husband was a national of Pakistan. It was hard for them to settle in either country due to the tensions between Pakistan and India and very restrictive visa conditions in each country for non-nationals (even those married to nationals).  Since moving to Australia almost 7 years ago, they were able to live peacefully in a diverse and friendly society. Their daughter was born here in 2013 and they wanted a better future for her and for the family;

   ·the applicant had been working for her Australian employer since 2011. She started as a part-time employee and soon became part of the organisation. Mr Geoff Wallace was impressed with her hard work, skills and knowledge and therefore offered her a full time role and sponsored her for a subclass 457 visa;

   ·due to unfortunate circumstances affecting the nomination, their subclass 186 permanent residence visas were refused, despite the dedication and sincerity of the applicant to her job. She and her family, and Mr Wallace, suffered from this;

   ·the applicant took leave from work after her subclass 457 visa expired because her husband was injured at work and she needed to support him in his recovery as well as look after her daughter. However, she had now returned to work; and

   ·Mr Wallace had invested in her training over the years, including paying for her to undertake 2 accounting units at the Melbourne Institute of Technology to be able to qualify as an Accountant in Australia and get a skills assessment from CPA Australia. She successfully completed those subjects with distinction and had obtained a positive skills assessment, which enhanced her value in her job, as she was now fully qualified as an Accountant and could manage the debts of the business and ensure its cash flow.

9. At the hearing, the Tribunal discussed with the applicants its view that the outcome of their review application hinged on the associated review by the Tribunal of the Department’s decision to refuse to approve the nomination of the applicant by the Australian Institute of Trades Pty Ltd as trustee for Institute of Hotel Management Australia. The Tribunal noted that if the nomination was not approved, then this would result in their review applications being unsuccessful. It indicated that if it affirmed the associated decision to refuse the nomination made by the Australian Institute of Trades Pty Ltd as trustee for Institute of Hotel Management Australia, then it would write to the applicants pursuant to s.359A of the Act to give them the opportunity to comment before it made its decision on their review application. 

10. The Tribunal also put information it held to the applicants pursuant to s.359AA, being a ‘dob-in’ allegation made anonymously to the Department that the applicant’s employer Mr Geoff Wallace was paid $80,000 to sponsor a student’s wife for temporary and permanent residence, and that her employment there was not genuine, as her husband paid her salary back to Mr Wallace and she did not attend work regularly. The Tribunal advised that it had not made up its mind about this information, but considered that it was relevant and potentially adverse to the applicants’ case as, if the Tribunal did accept the allegation, it would indicate that her employment with her nominating employer was not genuine, and this might cause the Tribunal to affirm the Department’s refusal of the associated nomination of the applicant. The Tribunal further advised that if it affirmed the nomination refusal, then this would be the reason (or part of the reason) to affirm the decision under review to refuse to grant her and her family subclass 186 visas, as it was a mandatory requirement for her to be the subject of an approved nomination to obtain a subclass 186 visa. The Tribunal asked the applicant if she wished to respond to this information immediately, or whether she wished to ask for additional time to do so. The applicant elected to respond immediately and stated that she had never heard this allegation and that she categorically denied that it was true.

11. The Tribunal wrote to the applicants via their agent, pursuant to s.359A of the Act on 24 September 2018, to invite them to comment on or respond to information held by it; namely, that on 21 September 2018, the Tribunal had affirmed the Department’s decision to refuse to approve the nomination of her made by the Australian Institute of Trades Pty Ltd as trustee for Institute of Hotel Management Australia.  The Tribunal advised that this information was relevant to the review because it indicated that the applicant was not the subject of an approved nomination and therefore could not meet cl.186.223. The Tribunal further advised that if it found that the applicant did not meet cl.186.223, then this would be the reason (or part of the reason) to affirm the decision under review in relation to her. It further advised that if it found that the applicant did not meet the primary visa criteria, then this would be the reason to affirm the decision not to grant the second and third applicants subclass 186 visas, as it would have to find that they did not meet the requirement in cl.186.311 to be members of the family unit of a person who satisfied the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right. The applicants were invited to comment on, or respond, to this information by 8 October 2018.

12. The applicants via their agent sought an extension of time to do so and this was granted to 22 October 2018. On that date, the Tribunal received a response from the applicants’ agent, in which the following points were made (in summary):

    ·    it was acknowledged that the applicant could not meet the requirements for a subclass 186 visa as she was not the subject of an approved nomination;

    ·    however, it was submitted that this was for reasons outside her control, and that the applicants intended to request that the Minister intervene in their case pursuant to s.351 of the Act. They also sought the Tribunal’s referral for the same purpose;

    ·    the applicant was born in India, while her husband (the second named applicant) was born in Pakistan. They were married in India in 2007. During 2007 to 2008, the second named applicant would travel from Pakistan to India to be with the applicant, but due to visa restrictions, he could only visit for a maximum of 4 weeks every 3 months;

    ·    in 2009, the second named applicant came to study in Australia. The applicant joined him in 2010 as a dependant on his student visa. At that time, the second named applicant was studying at the Australian Institute of Trades Pty Ltd (AIT). There was a part time job available there, and the applicant applied for it and was appointed. She was sponsored for a subclass 457 visa and offered full time employment due to impressing AIT with her work ethic and skills from her background as an Accountant in India;

    ·    the subclass 457 visas were granted on 31 August 2012 and the applicant began working full time as an Accountant for AIT. The couple had their daughter, Zara, on 16 June 2013. Zara is an Indian citizen by birth;

    ·    in 2015, the applicants made their permanent residence application via the Employer Nomination Scheme but unfortunately, AIT’s nomination of the application was refused and the applicants and AIT sought review of the refusals of the nomination and associated subclass 186 visas at the Tribunal;

    ·    the nomination review was unsuccessful and it was understood that as a consequence, the visa application review would also be unsuccessful under the law as it currently stood. However, it was felt that there were strong reasons supporting Ministerial intervention;

    ·    there were compassionate circumstances regarding the age and/or health and/or psychological state of the applicant that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship. Namely, the second named applicant sustained a lower back injury while working as a taxi driver in July 2014.  CT and MRI scans indicated nerve compression and the second named applicant was referred to a pain management specialist and began various pain management treatments such as hydrotherapy and nerve root and joint injections. Unfortunately, these treatments did not assist but appeared to exacerbate his lower back pain;

    ·    the second named applicant has over time developed increasing left knee pain in addition to his ongoing lower back pain, particularly after sitting for more than 30 to 45 minutes and lying in bed overnight.  He also suffers from lower body numbness over the past 2 years on lying down or sitting for 10 to 15 minutes, although this is alleviated when he stands. He is currently taking various medications to alleviate the pain and continues to seek treatment of the underlying cause;

    ·    the applicant has been continually anxious and distressed by their unresolved visa status for the past 3 years, and often wakes up in sweats, generally after a nightmare.  She has been referred to a psychologist and a report would be provided in due course;

    ·    it was submitted that the second named applicant’s injury, compounded with the applicant’s psychological state, should be considered a unique and exceptional circumstance that should be brought to the Minister’s attention, and that, if not recognised, would result in serious, ongoing, irreversible and continuing hardship to the second named applicant;

    ·    the Tribunal was asked to defer its decision until the provision of the psychological report for the applicant, which was anticipated to be ready by 12 November 2018;

    ·    there were circumstances not anticipated by the relevant legislation. Alternatively, there were clearly unintended consequences of legislation, and/or the application of the relevant legislation led to unfair or unreasonable results in this case. The Tribunal was asked to take into account the fact that the applicant had worked for AIT for the past 5 years and that the refusal of the nomination was wholly beyond her control. It was noted that she met the requirement for a subclass 186 visa to have worked for at least 2 out of the 3 years preceding the lodgment of the nomination, and it was beyond her control that AIT had gone into liquidation and been placed in the hands of an external administrator (which was the principal reason that the Tribunal affirmed the Department’s decision not to approve its nomination);

    ·    if the applicant was required to return to India, and the second named applicant to Pakistan, there was uncertainty regarding family unity due to the complex visa and citizenship arrangements between Pakistan and India. According to the Indian Bureau of Immigration, the second named applicant might be eligible for an Entry Visa (X) on the basis of being the foreign spouse of an Indian national but he would not be permitted to be employed or to operate a business. It was unclear how long the holder of an Entry Visa (X) would be permitted to stay in India, but it was noted that the second named applicant would only be eligible for an extension of the visa on a year to year basis, up to a maximum of 5 years. Even if he accepted this, he would be unable to work or run a business and thus would put a financial burden on the family.  It was also uncertain whether he would be able to obtain Indian citizenship as he was required to be an ordinary resident of India for 7 years before making an application;

    ·    according to the Pakistan Directorate General of Immigration and Passports, resident/non-resident Indians could be granted visitor visas, transit visas or tourist visas only. It was unclear how long a Pakistan visitor visa would allow an Indian national to stay to visit relatives;

    ·    it was submitted that the application of relevant legislation would lead to unreasonable results for reasons beyond the applicants’ control and the family would face great difficulties if they had to leave Australia;

    ·    the Tribunal was asked to consider the level and nature of the applicants’ integration into the Australian community and the length of time they had been here. A letter from the Alameen Seymour Islamic Foundation Ltd expressing gratitude for the applicants’ extensive involvement with the mosque’s volunteering services was provided; and

    ·    in accordance with natural justice principles and procedural fairness, the Tribunal was requested to defer its decision until it was provided with the psychological report for the applicant.

13. The submission was accompanied by the following documents:

    ·radiologists reports for the second named applicant, dated 21 July 2014, 9 May 2015 and 7 September 2016, indicating that there are disc bulges at L4-5 and L5-S1, with compromise of the right L4 nerve root and the left S1 nerve root, and mild compromise to the left L5 nerve root;

    ·CT scan for the second named applicant, dated 21 March 2016;

    ·prescriptions for the second named applicant for Neurontin and Panadeine Forte; and

    ·letter dated 20 August 2014 from Associate Professor Richard Sullivan giving an opinion that the second named applicant has disc degeneration at L4/5 and L5/S1 with mild compromise of exiting L5 nerve.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

15. 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.

16. 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.

17. The applicants have acknowledged that the applicant is not the subject of an approved nomination by AIT Pty Ltd (or any other employer), and they did not dispute the information provided to them by the Tribunal in its s.359A letter, to the effect that the Tribunal had affirmed the Department’s decision in relation to the refusal of the nomination.

18. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by that employer (or any other employer). As such, she cannot meet cl.186.223(2) and thus cannot meet cl.186.223 as a whole.

19. Further, the applicant finds that the second and third named applicants (the applicant’s husband and daughter) cannot meet cl.186.311, which requires them to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right.

20. The applicants have only sought to satisfy the criteria for subclass 186 visas 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 pursuant to s.351 of the Act

21. In the event of an unsuccessful outcome to their review application, the applicants have asked the Tribunal to consider referring the matter to the Minister for consideration of the exercise of his non-compellable, personal power to intervene in their case to grant them visas pursuant to s.351 of the Act.

1. Their agent also asked that the Tribunal defer its decision until 12 November 2018 to enable him to provide a psychological report for the applicant and cited natural justice and procedural fairness as grounds for the Tribunal to do so.

2. The Tribunal has considered that request but declines to defer its decision for a further period, as legally, the outcome of this review will not be changed by the provision of such a report, as it cannot alter the fact that the applicant cannot satisfy cl.186.223. Accordingly, the Tribunal does not accept that it is bound by the precepts of natural justice or procedural fairness to defer making its decision. It also considers that the outcome of this application has been clear to the applicants and their agent since they were notified on 24 September 2018 that the Tribunal had affirmed the associated nomination refusal decision, and that they have had sufficient time to organise and provide any supporting material that they wish to provide in respect of the Ministerial intervention grounds.  Moreover, there is nothing preventing them from providing the report (if and when received) to the Minister directly as part of their request under s.351.

3. The Tribunal has considered the reasons put forward for it to refer this matter to the Minister for consideration of the exercise of his discretionary power pursuant to s.351 but declines to do so. In the Tribunal’s view, the fact that the second named applicant sustained a lower back injury and has ongoing pain management issues is not sufficiently unique or compelling to warrant the Tribunal referring the matter, particularly as it has not been suggested that he could not obtain treatment for this overseas if he has to depart Australia. Similarly, while the Tribunal accepts that it is understandable that the applicant is stressed by her circumstances, there is no indication that she sought treatment for this until very recently and therefore her prognosis must be regarded as uncertain.  The Tribunal gives some weight to the fact that the applicants have been living in Australia for nearly 9 years now, and that their daughter was born here in 2013. However, no information regarding the effect on her of having to leave Australia was provided to the Tribunal and the Tribunal does not consider it appropriate to speculate about this.  Finally, the Tribunal considers that insufficient evidence has been provided to substantiate the family’s concerns that the applicant would not be able to reside indefinitely in Pakistan with her husband, or vice versa in India, given that the Tribunal has located information which suggests that a foreign spouse of a Pakistani national is entitled to apply for Pakistani citizenship on that basis, pursuant to s.10(2) of the Pakistan Citizenship Act 1951: Country of Original Information Services Section (COISS) report CI 1602011554037754 of 24 March 2016.

4. The Tribunal again notes that it remains open for the applicants to directly request Ministerial intervention pursuant to s.351, and to provide additional information about the above matters, and any others they consider make their case unique and compelling.

   DECISION

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

   Alison Mercer
   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.