Kumar (Migration)

[2019] AATA 1496

Kumar (Migration) [2019] AATA 1496 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ajay Kumar
Mrs Usha
Mr Rehaan Rana

CASE NUMBER:  1710044

HOME AFFAIRS REFERENCE(S):           BCC2016/3285167

MEMBER:Katie Malyon

DATE:4 January 2019

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 04 January 2019 at 5:13 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Motor Mechanic (General) – no approved nomination – sponsor’s business placed in liquidation – decision under review affirmed       

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13

CASES

Hasan v MIBP [2016] FCCA 1049
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 and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 October 2016.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.  Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, the first named applicant – Indian national, Mr Ajay Kumar - is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General).  Initially, the applicants were represented in relation to the review by their registered migration agent.

5. The delegate refused to grant the visas on the basis Mr Kumar did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by his prospective employer was refused by the Department. A copy of the delegate’s decision was provided to the Tribunal.

   Background

6. Mr Kumar was nominated to fill the position of Motor Mechanic (General) by Orange Mamba Pty Ltd (the Company) trading as LK Motors, which is based in Cairns.  However, the nomination application made by the Company was refused by the Department on 4 April 2017.  As a result, the Department refused Mr Kumar’s Subclass 187 visa application.  The Company sought review of the delegate’s refusal of its nomination application in related matter number 1708985.  On 21 November 2018, the Tribunal affirmed the delegate’s decision not to approve the Company’s nomination in respect of the position of Motor Mechanic (General) for Mr Kumar.

7. Accordingly, on 23 November 2018, 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 187 visa application. The Tribunal informed the applicants that it had made a decision to affirm the Department’s decision not to approve the Company’s nomination in respect of the position of Motor Mechanic (General) for Mr Kumar. As a result, the position to which his Subclass 187 visa application relates could not meet the criteria in cl.187.233 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105, this is a ‘once off’ process.

8. The Tribunal’s letter to the applicants was sent to their representative who lodged their review application with the Tribunal.  The applicants were requested to provide any comments or response to the information in the Tribunal’s letter on or before 7 December 2018.  On 27 November 2018, the Tribunal received from the registered migration agent notification of cancellation of his representation on behalf of the applicants.  Accordingly, on 3 December 2018, the Tribunal sent the applicants a further copy of its letter of 23 November 2018.

9. On 7 December 2018, the Tribunal received a response from Mr Kumar.  He notes that he arrived in Australia 10 years ago to undertake a professional trade course and has since completed a Diploma as well as a Certificate III and a Certificate IV in Automotive Technology.  Mr Kumar states his employer’s nomination was refused due to its inability to supply required information or documentation on time and, as a result, his Subclass 187 visa was refused.  Subsequently, the Tribunal affirmed refusal of the nomination.  Mr Kumar then makes the following submissions:

   ·He lodged his Subclass 187 application based on his skills as well as qualifications (as a Motor Mechanic) and was able to meet the skill requirement along with other prescribed requirements.

   ·The circumstances impacting the nomination (made by the Company) were beyond his control and he requests time to look for another nominator on the basis that he may be able to negotiate a new contract with either his existing employer or a new employer so that a new nomination can be lodged.

   ·As an employee, he is not able to exercise any control over his employer, feels helpless and needs some time. 

   ·He meets all requirements for grant of a Subclass 187 visa apart from having an approved nomination and that is not in his control because he has to reply (sic) on its approval.

   ·The occupation of Motor Mechanic (General) is in demand and thus a fair consideration should be given for filling such a vacancy in regional areas as that is the intention of the RSMS visa.

   ·He and his family have lived in Australia for the last 10 years and he has responsibility to give a secure future to his son.  He requests he be given a fare (sic) chance to prove his skills.

   ·He would like the Tribunal to give him a chance to put his point of view on his case because there (sic) is not his fault at all.  The business (of LK Motors) is still running, one partner has left and another has come in and they have changed the name of the company operating the business of LK Motors.  He joined LK Motors (when it was operated by the Company) and it is still there: only the company which owned the business of LK Motors has changed and that is beyond his control.

   ·He requests the Tribunal allow him to present to the Tribunal and explain his situation.  He is confident that in the next 10 - 12 weeks his employer will be able to re-lodge his nomination application, or he can find another employer to nominate him.

10. Following receipt of Mr Kumar’s response to it letter issued pursuant to s.359A of the Act, on 12 December 2018 the Tribunal invited the applicants to a hearing on 4 January 2019. The Tribunal indicated in bold text in its hearing invitation:

    We request any additional documents or information that you may wish to rely on during the hearing be provided to us by 28 December 2018.

    No documentation was received from Mr Kumar prior to the hearing. 

11. The applicants appeared before the Tribunal on 4 January 2018 by way of teleconference from Cairns to give evidence and present arguments.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in Mr Kumar’s 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

14. Clause 187.233 of Schedule 2 to the Regulations, as applicable in this case, is set out in full in the Attachment to this decision.  Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia.  The position must be the one that was the subject of the declaration made as part of the current visa application.  In addition, the criterion also requires that:

    ·the person who will employ the 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), 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.

    Hearing

15. At the commencement of the hearing, the Tribunal identified that the issue in this review is whether there is an approved nomination by the Company for the purposes of cl.187.233 of Schedule 2 to the Regulations and it explained the requirements of this provision. It also observed that, as set out in its s.359A letter, the recent Full Federal Court of Australia decision in Singh v MIBP[1] the Court held that it is a “once off” process.[2]  The Tribunal stated that, if the applicants had appeared before the Tribunal (in Sydney), it would have provided them with a copy of their Subclass 187 visa application so that they could see the declaration made by Mr Kumar regarding the specific nomination by the Company when the visa application was lodged on 4 October 2016.  Mr Kumar acknowledged the implications of the decision in Singh’s case for the applicants’ visa application. 

    [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].

16. The Tribunal noted that publicly available information indicates that the Company was placed in liquidation on 24 September 2018.  It also observed that, based on the reasoning in Singh’s case referred to above, it is a “once-off” process and, as a consequence, the Tribunal must affirm the delegate’s decision since there is no approved nomination in relation to Mr Kumar.  Asked for his comments, Mr Kumar said that he was aware of the Company’s liquidation.  He added the business of LK Motors has since been sold: it is now is now running and going well and, further, he continues to be employed as a Motor Mechanic with LK Motors’ new owners. 

17. Mr Kumar then, essentially, reiterated the evidence outlined in his submission referred to above at para [9]. By way of summary, he noted that the situation in which he and his family find themselves was totally out of his control and came upon them through no fault of their own. He said he has lived in Australia for 10 years and has his young family to support: however, he now feels stuck as his plan was to stay in Australia after completing his Motor Mechanic trade qualifications here and use his skills to benefit Australia. The Tribunal acknowledged that it accepted the Company’s liquidation and resultant refusal of its nomination application were circumstances beyond Mr Kumar’s control. It observed that it must, however, apply the law.

18. Mr Kumar also told the Tribunal that after the Company ceased operating in Cairns he has managed to get 2 - 3 offers from other employers due to his hard work and skills. He acknowledged the Tribunal’s observation that no documentation evidencing such offers of employment - such as copy letters of offer or, in the alternative, evidence of lodgement of a new nomination application - had been provided to the Tribunal on or before 28 December 2018, as requested in the Tribunal’s hearing invitation letter. The Tribunal noted that s.2A of the Administrative Appeals Tribunal Act 1975 requires it to make decisions which are, amongst other things, quick.  It also observed that it was not minded to delay its decision having regard: not only to the passage of time since the delegate’s refusal of the Company’s nomination application on 4 April 2017 and Mr Kumar’s awareness of the Company’s liquidation on 24 September 2018; but also, the implications of the decision in Singh’s case that a RSMS nomination is a “once-off” process for a Subclass 187 visa application and, further, the Tribunal’s express request in its hearing invitation for the applicants to lodge with the Tribunal by 28 December 2018 any additional documentation or information that they may wish to rely upon during the hearing. 

19. Mr Kumar responded to the Tribunal’s comments noting that he had sought advice from a number of registered migration agents and had been advised that he would not be able to apply for one of the new Subclass 482 Temporary Skilled Shortage visas, even if he returned to India and applied for the visa offshore, until such time as he had at least 2 years relevant experience in his nominated occupation of Motor Mechanic  and, as a result, he requested the Tribunal delay its decision for ‘a few months’ until June 2019.  In response to the Tribunal’s observation that, if he left Australia, he could work as a Motor Mechanic in India, Mr Kumar said that he has already got the skills required - he has a positive skill assessment for his occupation – and should be given a fair chance to stay in Australia as he only needs a couple of ‘extra months experience to meet the 2 year relevant experience requirement for a Subclass 482 visa: he already has 18 -19 months experience in the role.  He also added that the Australia has recognised there is a shortage, particularly in regional areas, of the skills that he has as a Motor Mechanic. 

20. The Tribunal raised with Mr Kumar the possibility of him making application to the Minister for his personal intervention pursuant to s.351 of the Act. He indicated he could collate documentation to support such an application, particularly from prospective employer DC Motors.

    Conclusion

21. On the evidence before it, the Tribunal finds that the nomination application made by the Company associated with the position of Motor Mechanic (General) in respect of Mr Kumar was not approved. Therefore, Mr Kumar does not meet cl.187.233 of Schedule 2 to the Regulations.

22. As Mr Kumar does not satisfy the primary criteria for the grant of a Subclass 187 visa, the second and third named applicants - his wife Mrs Usha and his 5 year old son - cannot satisfy the secondary criteria for grant of the visa.  There is no evidence before the Tribunal to indicate that Mrs Usha meets the primary requirements for grant of the visa. 

23. Mr Kumar 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 stream.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the Tribunal has no discretion and must affirm the decision under review.

    Is this an appropriate case to refer to the Ministerial?

24. 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. 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.

25. 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:

    “exceptional economic … or other benefit that would result from the person being permitted to remain in Australia”.

    [3] homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention#content-index-1

26. As discussed with Mr Kumar during the hearing, as 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, it is open to Mr Kumar, if he so wishes, to seek ministerial intervention directly and, ideally, provide a detailed submission and evidence to the Minister for his consideration.  The Tribunal noted he may wish to seek professional advice to assist him and any prospective employer in this regard. 

    DECISION

27. 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

    ..
    
    

    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