Kugashiya (Migration)

[2022] AATA 1991

Kugashiya (Migration) [2022] AATA 1991 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maheshbhai Ramjibhai Kugashiya
Mrs Khushbuben Maheshbhai Kugashiya

REPRESENTATIVE:  Mr Boniface Town (MARN: 9358658)

CASE NUMBER:  2103288

HOME AFFAIRS REFERENCE(S):          BCC2019/4148560

MEMBER:Katie Malyon

DATE:16 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 June 2022 at 10:40 am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Travel Agency Manager – no approved nomination – sponsoring busines deregistered – impact of the COVID-19 pandemic on a travel agency – referral for Ministerial Intervention – unique or exceptional circumstances – applicant’s business interests in other companies – decision under review affirmed   

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

CASES

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 Home Affairs on 25 February 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 August 2019.  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 (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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In this case, the first named applicant -- Indian national Mr Maheshbhai Ramjibhai Kugashiya -- is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Travel Agency Manager ANZSCO 142116.

5. The delegate refused to grant the visas on the basis Mr Kugashiya did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination made by his employer, St Woods Pty Ltd T/A Tripple T Travels (the Company) was refused.  Both the Company and the applicants sought review of the delegate’s decision to refuse their respective applications.  However, although the Company applied for review of the delegate’s refusal of its nomination application, the Tribunal found it had no jurisdiction to hear the matter as the Company had been deregistered by the Australian Securities and Investment Commission (ASIC).  As such, it no longer existed.

The Tribunal’s s.359A letter

6. On 9 March 2022, the Tribunal wrote to the applicants pursuant to s 359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason or a part of the reason, for affirming the decision under review to refuse their Subclass 186 visa application. The Tribunal informed the applicants that their visa application had been refused by the delegate because the Company’s nomination was refused and, although the Company applied to the Tribunal for merits review of that refusal decision, the Tribunal found that it did not have jurisdiction as the Company had been deregistered with ASIC and it ceased to exist as a legal entity. As a result, the position to which the applicants’ Subclass 186 visa application relates cannot meet the criteria in
cl 186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.

1. In its s.359A letter, the Tribunal requested the applicants provide any comments or response to the information in the Tribunal’s letter on or before 23 March 2022. The applicants requested an extension of time to respond on 16 March 2022 and the Tribunal granted this request with a due date of 8 April 2022. The applicants responded to the Tribunal’s invitation to comment on its s 359A letter on 31 March 2022. They briefly addressed some matters pertaining to the case. As the applicants had responded to the Tribunal’s s 359A letter within the permitted timeframe, the Tribunal invited them to attend a hearing.

   Hearing

8.    Mr Kugashiya appeared before the Tribunal on behalf of the applicants on 5 May 2022 to give evidence and present arguments at a MS Teams teleconference hearing.  

9.    The applicants were represented in relation to the review by their registered migration agent, Mr Boniface Town of Ausia168 Pty Ltd.  The representative also attended the hearing.

1. At the commencement of the hearing, the Tribunal outlined the information set out in its

   
   

   s 359A letter. It noted that, since there is no approved nomination and as noted in Singh’s case it is a once-off process, the Tribunal has no discretion and must affirm the delegate’s decision to refuse the applicants’ Subclass 186 visa application.  Mr Kugashiya acknowledged the Tribunal’s comments in this regard.  He observed that the Company, as a travel agency, had been adversely impacted by the ongoing COVID-19 pandemic and resultant border closures. 

2. The Tribunal noted its only discretion was whether the matter should be referred to the Minister pursuant to s 351 of the Act to enable consideration of whether the Minister should make a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so. Mr Kugashiya told the Tribunal that he has been working in Australia since 2015 consistent with his visa conditions and, unfortunately, there were lots of problems with the previous agent (such as his wife had not been included in the application) and then, with border closures following the impact of COVID-19. the Company ceased to exist. He said that he managed to find alternative work as an Operations Manager / Construction Manager with property developer Unlimited Trade Services Pty Ltd (Unlimited Trade Services) and 3 of its related organisations including Manko Homes Pty Ltd (Manko Homes).  He is also a shareholder of all of the corporate entities.  Mr Kugashiya told the Tribunal that the property group he is involved with has a turnover in excess of $12 million per annum.  The Tribunal invited Mr Kugashiya and the representative to submit additional documentation to enable it to consider whether this is an appropriate case to refer to the Minister. 

3. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.  It has also considered if the matter should be referred to the Minister.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether, as the primary applicant, Mr Kugashiya meets the requirements of cl 186.223(2) of Schedule 2 to the Regulations.

   Nomination of a position

5. 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.

6. 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 6 months after the nomination of the position was approved.

7. The Company’s nomination was refused by the Department and, although it sought review of that decision, the Tribunal found that it had no jurisdiction to conduct the review as ASIC records confirmed that the Company had ceased to exist. In the circumstances, as the nomination application made by the Company for the position of Travel Agency Manager ANZSCO 142116 to which Mr Kugashiya’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl 186.223(2) of Schedule 2 to the Regulations.

8. Mr Kugashiya 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.

9. The application of the second named applicant, Mrs Khushbuben Maheshbhai Kugashiya, is are based on her being a member of the family unit of a person who meets the primary criteria.  As Mr Kugashiya does not meet the primary criteria it follows that the other applicant cannot meet criteria for grant of the visa.  Accordingly, the Department’s decision to refuse the application of the second named applicant must also be affirmed. 

   Is this an appropriate case to refer to the Minister?

19. Having found that the delegate’s decision must be affirmed because Mr Kugashiya cannot meet cl 186.223 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister as requested.

1. As noted above, 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.

21. 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[1].   The guidelines state 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 Minister has also indicated cases which are inappropriate for his consideration

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

   ·exceptional economic, scientific, cultural or other benefit would result from the review applicant 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 a particular case (emphasis added)

24.   The Tribunal has considered not only the Minister’s Guidelines referred to above but also
cl 16.1 – cl 16.5 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews as to whether this is an appropriate case to refer to the Minister. [2]  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 and exceptional circumstances. 

25.   As noted above, the Tribunal invited the applicants to provide further documentation in support of the Tribunal’s consideration as to whether this is an appropriate case for it to refer to the Minister.  After the hearing, the representative made a detailed submission on behalf of the applicants dated 10 May 2022 and provided an extensive range of documentation.

[1]

1. The circumstances and considerations which engage whether the Tribunal should refer this matter to the Minister are the exceptional economic benefit that would result from the review applicant being permitted to remain in Australia.  The representative has provided ASIC searches as evidence of Mr Kugashiya’s business interests in 4 companies, hereinafter referred to as the Group:

   1)Unlimited Trade Services;

   2)Manko Homes;

   3)Smart Homes Pty Ltd (Smart Homes); and,

   4)A.C.N. Pty Ltd.

2. Mr George Kokkinos is a Director of each of the companies in the Group.  He has provided a signed letter dated 18 May 2022 confirming that all companies in the Group are associated entities and are involved with various aspects of the Sydney residential property development.  He confirms that, over the past 5 years, Mr Kugashiya has been involved with the Group in various roles including being a Director as well as management roles including Construction Manager with Manko Homes. 

3. Mr Kokkinos states that Manko Homes has been operating for more than 15 years and is one of the most trusted names in the Sydney property business.  It renovates and builds approximately 100 homes per year including working on the design process through its architectural and engineering service hire team.  Mr Kokkinos adds that Mr Kugashiya has been undertaking the role of Construction Manager with Manko Homes for the last 5 years.  He provides a detailed position description of the work undertaken By Mr Kugashiya in his role overseeing the day-to-day running of the business, reporting on progress, developing contacts with senior staff for each project and ensuring the health and safety standards are met.  An Organisation Chart for Manko Homes has also been provided.  Mr Kokkinos opines that Mr Kugashiya is an integral part of the business and its ongoing employment of over 20 employees and contractors.

4. Financial Reports for each of the companies in the Group have been provided and confirm Group revenue exceeded $15 million for the year ended 30 June 2021 with profit reported of more than $1 million and equity approximating $2 million.  The representative notes that, throughout the COVID-19 pandemic, many businesses in the construction industry have struggled.  He has provided a number of articles confirming the drop in housing supply in Sydney thereby highlighting the contribution, albeit small, that Manko Homes makes each year in building over 100 homes.  One such article, published 24 February 2022 in the Sydney Morning Herald, considers the historic drop in supply of new Sydney homes down from 42,000 in 2017-18 and 2018-19 to fewer than 30,000 in 2020-21.[3]  The representative has also provided a copy of the NSW Department of Planning and Environment’s forecasts of housing supply in Sydney.[4] 

   [3] ‘Historic’ drop in supply of new Sydney homes prompts shortage warning (smh.com.au)

   [4] Sydney housing supply forecast insights - (nsw.gov.au)

5. In addition, the representative has provided a signed reference letter dated 18 May 2022 from Ramesh Hirani, an Engineer with Aussie Structural Engineers, which has been appointed as the Consulting Structural Engineers to numerous projects undertaken by Manko Homes in the past 5 years when Mr Kugashiya was working as the Construction Manager. 

6. The representative also advised that Mr Kugashiya has applied to the New South Wales Government for sponsorship for a Business Innovation and Investment Subclass 188A visa.  A copy of the application lodged on 22 February 2022 has been provided to the Tribunal.  As noted by the representative, Mr Kugashiya’s eligibility for NSW State Sponsorship for a Subclass 188A visa is based on his business activities falling within the NSW target sector of renewable energy and sustainability.  In this regard, the representative notes that Manko Homes has an offshoot company, Smart Homes, which is focused on designing and developing homes that have implemented the highest environmental standards, not only in construction materials but also during the construction process.  This relates not only to design regarding how the house will operate from a “green” environmental perspective but also on-site practices from use of tools to disposal of waste so that all activities are conducted with a “green” lens with a view to operating sustainably and with a minimum carbon footprint.

7. In addition, the representative has provided a brief background of Mr Kugashiya’s business assets totalling almost $1.7 million.  He notes that Mr Kugashiya has been able to help develop and expand Manko Homes and has clearly demonstrated an exceptional economic contribution meriting his continued stay in Australia. 

8. The representative has also submitted that the Tribunal should consider, as a basis for referring this matter to the Minister, that circumstances not anticipated by the relevant legislation, have adversely impacted the applicants.  In this regard, the representative notes the travel industry was particularly hard hit by the COVID-19 pandemic and this led to the Company’s collapse, refusal of its nomination and, thereby, the subsequent refusal of Mr Kugashiya’s Subclass 186 visa application.  The representative adds that, although clearly a victim of the pandemic through the demise of the travel agency and resultant loss of his job with the Company, Mr Kugashiya has not dwelled on this loss but, rather, strengthened his business operations and tried to further develop his business interests and activities in Australia.

9. During the course of the hearing - and after being told of Mr Kugashiya’s role with the Group, in particular, Manko Homes - the Tribunal raised the possibility of Mr Kugashiya being sponsored by Manko Homes for the position of Construction Manager as the holder of a temporary Subclass 482 visa or nominated for permanent residence as the holder of a Direct Entry Subclass 186 visa. The representative acknowledged the Tribunal’s comments and confirmed that, with its multimillion dollar turnover, Manko Homes would qualify as a standard business sponsor and/or nominator. However, he noted that such processes would take time. During the hearing, the representative requested the Tribunal delay its consideration to afford the applicants additional time. The Tribunal declined the request. It noted the passage of time since lodgement of the review application on 16 March 2021 as well as the Company’s deregistration from ASIC 5 months earlier on18 October 2020 and the Tribunal’s obligation under s 2A of the Administrative Appeals Tribunal Act 1975 to, amongst other things, make decisions which are quick.

10. By way of final comment in his post-hearing submission, the representative states that during the applicants’ 10 years in Australia they have been proactively involved in a number of community organisations, in particular, the Vasavi Club in Sydney where Mr Kugashiya has been actively involved in community fundraising and volunteering in various charity programs.  The Tribunal has been provided with a signed letter from Vasavi Club President Kamalakar Kanade dated 18 May 2022 confirming Mr Kugashiya’s involvement in club activities for the past 5 years.

1. Having regard to the circumstances of this case, the Tribunal considers that Mr Kugashiya’s situation involves unique or exceptional circumstances as outlined above, in particular, that exceptional economic benefit would result from the review applicants being permitted to remain in Australia arising from Mr Kugashiya’s involvement as a shareholder with the Group and as a Construction Manager with Manko Homes.  This is especially so having regard to the statistics referred to in the Sydney Morning Herald article as well as the forecasts of the NSW Department of Planning and Environment referred to above.

2. Further, given the cost to the applicants, and vicariously to the Australian community, by virtue of dealing with any appeal from this decision to the Federal Circuit and Family Court of Australia, it may well be a consideration for the Minister to consider documentation lodged in support of the Minister’s intervention in this case: however, that is entirely a matter for the Minister. 

3. The Tribunal will provide the Department with documentation submitted by the representative after the hearing.  The applicants may wish to lodge further updated documentation with the Department.

   DECISION

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

   Katie Malyon

   
   Member

   ATTACHMENT

   186.223(1)     The position to which the application relates is the position:

   (a)nominated in an application for approval that:

   (i)identifies the applicant in relation to the position; and

   (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.

   oOOo