Moutou (Migration)

[2018] AATA 909

Moutou (Migration) [2018] AATA 909 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Veronique Sylvana Geraldine Joelle Moutou
Mr Guillano Allen Moutou
Mr Gael Julien Gerald Moutou
Miss Emma Jade Geraldine Moutou

CASE NUMBER:  1609352

DIBP REFERENCE(S):  BCC2015/2509771

MEMBER:Danica Buljan

DATE:10 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2018 at 4:03pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Nominated position – Hairdresser – Loss of a right to a hearing – s359A invitation – Failed to provide comments – Second invitation sent – Submission received – Granted previous visas before –No evidence of a labour agreement – Working as a hairdresser in regional Victoria – Compassionate grounds – Family well settled in Australia

LEGISLATION
Administrative Appeals Tribunal Act 1975 s2A
Migration Act 1958, ss 65, 351, 353, 359, 359A, 359C, 360, 363, 363A, 376
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19 Schedule 2 cls 187.223, 187.233, 187.242, 187.311

CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
 Minister for Immigration and Multicultural Affairs v Sun (2005)
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
 Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 on 6 June 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 29 August 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first-named applicant (‘the applicant’) is seeking the visa in the Direct Entry stream, to work in the nominated position of ‘Hairdresser’ (ANZSCO[1] Code 391111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, September 2006

5. The delegate refused to grant the visas on the basis that the applicant did not meet clause 187.233 of Schedule 2 to the Regulations. This was because the nomination application lodged by Barima Enterprises Pty Ltd, to which the applicant’s visa application related to, had not been approved.

6. The applicants lodged an application for review with the Tribunal on 23 June 2016, and a copy of the primary decision was included with this application.[2] The applicants were represented by a registered migration agent in relation to the review.

   [2]     AAT Case file 1609352 (T1), f.1-6

7. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file BCC2015/2509771,  folio numbered 1-65

   [4]     AAT Case file 1609352, folio numbered 1-135

8. The Tribunal has also dealt with a separate application for review in relation to the refusal of the application for approval of a nomination under regulation 5.19 of the Regulations lodged by Barima Enterprise Pty Ltd, which was seeking to sponsor the applicant as a ‘Hairdresser’ in its business.[5]  

   [5]     AAT Case file 1605026 (T2), folio numbered 1-190 & Departmental file  BCC2015/2497244 (D2), folio numbered 1-39

9. On 7 April 2017, the Department issued a certificate under section 376 of the Act that the Tribunal’s use and disclosure of particular information on the applicant’s departmental file is subject to the provisions of subsection 376(3) of the Act.[6]  

   The First Combined Tribunal Invitation to Comment on or Respond to Information and to Provide Information

   [6]     T1, f.42-43

10. On 10 April 2017[7], the Tribunal invited the applicant under section 359A of the Act to comment on / respond to certain information before it. In particular, departmental and Tribunal records relating to:

    ·The fact that the Department had issued a certificate under section 376 of the Act in relation to the applicant’s departmental file, which related to allegations that the applicant and her sponsoring employer (Barima Enterprise Pty Ltd) had entered into a paid arrangement to facilitate her permanent residence in Australia;

    ·The departmental records regarding the applicant’s immigration history; and

    ·The departmental records regarding the immigration history of Barima Enterprise Pty Ltd as a sponsoring employer, including its employer nomination application and the fact that that there was no evidence that this company had lodged an application for approval of a nomination in either the Temporary Residence Transition or labour agreement streams.

    [7]     T1, f.49-54

11. The Tribunal invitation stated that if it relied on this information, it might find that the applicant did not meet the requirements of subclause 187.233(3) because the Minister had not approved the nomination lodged by Barima Enterprise Pty Ltd. In addition, the Tribunal noted that it may find that the application for approval mentioned in subclause 187.233(1) was not still available to the applicant when it made its decision, as required by subclause 187.233(5). As a result, the Tribunal might find that the applicant did not satisfy the requirements of clause 187.233 at the time of decision.

12. The Tribunal also noted that it may find that the applicant could not meet the requirements of clause 187.223 under the Temporary Residence Transition stream or clause 187.242 under the Agreement stream and, therefore, she could not be granted a Subclass 187 visa.

13. The Tribunal further noted that, if it made these findings, the second, third and fourth-named applicants (‘the secondary applicants’) would not be the members of the family unit of a person who holds a Subclass 187 visa and, therefore, they would not meet the requirements of clause 187.311 at the time of decision. 

14. In addition, the letter observed that if the Tribunal made these findings, it would have no alternative other than to affirm the decision under review. 

15. In the same letter, and under subsection 359(2) of the Act, the Tribunal also invited the applicant to provide information that confirmed that she met the alternative requirements of clause 187.233, 187.223 or 187.242 at the time of decision.

16. The combined invitation included copies of the section 376 certificate issued to the Tribunal by the Department, as well as clauses 187.233, 187.223 and 187.242, to facilitate the applicant's response.

17. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 24 April 2017 (or within the period allowed for this purpose), or she would lose any entitlement she might otherwise have under the Act to appear before the Tribunal.

18. However, the applicant did not provide her comments / response, or the requested information, within the prescribed period. Nor did the applicant, or her representative, request an extension of time within the prescribed period in which to do so. Instead, the applicant’s representative forwarded a response with supporting information to the Tribunal via email at 11:32 am on 25 April 2017, which was outside the prescribed period.[8]

    [8]     T1, f.55-85: See specifically T1, f.85 reverse

    The Applicant’s Loss of the Right to a Hearing

19. The Tribunal notes that it sent the combined invitation under section 359A and subsection 359(2) of the Act to the email address belonging to the applicant’s representative, which was the last address for service provided by the applicant in connection with the application for review.[9]

    [9]     T1, f.54 & 133

20. However, the applicant failed to provide her comments/response to the information outlined by the Tribunal in its section 359A invitation, as well as the information the Tribunal had requested under subsection 359(2) of the Act, within the prescribed period. This means that subsections 359C(1) and (2) and subsection 360(3) apply to the applicant and she is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

21. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[10]

    [10]    See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498

22. Accordingly, as the applicant failed to give the comments/response and information requested within the prescribed period, she has lost her right to appear before the Tribunal to give evidence and present arguments relating to the application for review.

23. As a result, on 26 April 2017[11] the Tribunal wrote to the applicants to inform them that they had lost their entitlement to appear before it to give evidence and present arguments. In addition, the Tribunal advised the applicants that, in the interests of fairness, it would defer the decision until 10 May 2017 in the event that the applicant wished to provide any further information by this date for the purposes of the review.

    [11]    T1, f.86-94

24. However, the applicant and/or her representative did not provide a response to the Tribunal letter dated 26 April 2017 by 10 May 2017, as requested.

    The Second Combined Tribunal Invitation to Comment on or Respond to Information and to Provide Information

25. On 13 July 2017[12] the applicant telephoned the Tribunal to request a Medicare letter, which was provided to the applicant through her representative on the same date.[13]

    [12]    T1, f.95

    [13]    T1, f.96-98

26. At various times (22 August 2017, 19 September 2017 and 28 November 2017) either the applicant or her representative emailed the Tribunal to query the progress of the application for review, and the Tribunal responded to each of these queries with an explanation of this issue.[14]

    [14]    T1, f.99-106

27. Importantly, on 21 December 2017 the Tribunal affirmed the decision under review to refuse the related employer nomination application lodged by Barima Enterprise Pty Ltd.

28. Accordingly, on 22 December 2017[15] the Tribunal invited the applicant to comment on / respond to this information under section 359A of the Act. The Tribunal invitation explained the relevance of this information to its decision in respect of clause 187.233, including the particular relevance of the Full Federal Court decision in Singh v Minister for Immigration and Border Protection[16] (‘Singh’s case’). This letter also explained for a second time why the applicants had lost their entitlement to appear before the Tribunal to give evidence and present arguments. The Tribunal letter further indicated that the applicant’s response / comments should be received by 5 January 2018.

    [15]    T1, f.107-111

    [16] [2017] FCAFC 105

29. On 2 January 2018, the Tribunal received a submission from the applicant with supporting documentary evidence, outlining the reasons why she and her family wished to remain in Australia.[17]

    [17]    T1, f.112-132

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in the present case is whether the Minister has approved the relevant nomination for the purposes of clause 187.233 of the Regulations.

    Nomination of a position

32. Specifically, for applicants in the Direct Entry stream clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under subregulation 5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application: subclause 187.233(1).

33. In addition, this criterion also requires that:

    ·The person who will employ the applicant is the person who made nomination: subclause 187.233(2);

    ·The nomination has been approved and has not been subsequently withdrawn: subclauses 187.233(3) and (4);

    ·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: subclause 187.233(4A)[18];

    ·The position is still available to the applicant: subclause 187.233(5); and

    ·The visa application was made no more than six months after the nomination of the position was approved: subclause 187.233(6).

    [18]    As inserted by SLI 2015 No. 242 and applying to all new visa applications and visa applications not finally determined as at 14 December 2015.

34. According to the primary decision record the applicant provided with the application for review, and as set out in the Tribunal section 359A invitations (dated 10 April 2017 and 22 December 2017), the nomination that was linked to the applicant’s visa application and lodged by Barima Enterprise Pty Ltd was not approved by the Department at first instance on 31 March 2016. In addition, the Tribunal affirmed the decision to refuse the employer nomination application lodged by Barima Enterprise Pty Ltd on 21 December 2017.

35. Notably, in Singh’s case[19] the Full Federal Court considered the wording of clause 187.233 and held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court held that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application.

    [19] [2017] FCAFC 105

36. As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the ‘position’ referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval.  As a consequence, the decision in Singh’s case[20] means that where the Department refuses a nomination, an applicant will not meet the requirements of clause 187.233 unless the original decision to refuse the nomination is set aside by the Tribunal on review.

    [20] [2017] FCAFC 105

37. In this case, and as set out in the Tribunal section 359A invitations (dated 10 April 2017 and 22 December 2017), Barima Enterprise Pty Ltd had lodged an application for review with the Tribunal on 12 April 2016. However, on 21 December 2017 the Tribunal affirmed the decision under review to refuse the employer nomination application lodged by Barima Enterprise Pty Ltd.

38. Accordingly, whilst the Tribunal has had regard to the applicant’s submissions and evidence regarding her employment with Barima Enterprise Pty Ltd in Wodonga and her personal circumstances, it notes that this does not alter the requirements of clause 187.233. This is because the wording of this provision, and the decision in Singh’s case[21], mean that the Tribunal must find that the Minister has approved the nomination lodged by Barima Enterprise Pty Ltd on 28 August 2015, which was identified in the visa application the applicant made on 29 August 2015, before it can find that she meets the requirements of clause 187.233.

    [21] [2017] FCAFC 105

39. As a consequence, given the evidence before it that the related employer nomination application by Barima Enterprise Pty Ltd has been refused, the Tribunal finds that the Minister has not approved the nomination to which the applicant’s visa application relates. Therefore, the Tribunal finds that the applicant does not meet the requirements of subclause 187.233(3) and, consequently, clause 187.233 at the time of decision.

40. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. Although no specific claims have been made in respect of the other visa streams, given the evidence before it, the Tribunal has considered whether the applicant might meet the relevant criteria in either the Temporary Residence Transition stream or the Agreement stream.

41. Specifically, clause 187.223 applies to applicants seeking a Subclass 187 visa in the Temporary Residence Transition stream. Paragraph 187.223(1)(a) requires the position to be in respect of a position that is nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3).

42. As set out in the Tribunal section 359A invitations (dated 10 April 2017 and 22 December 2017), there is little in the evidence to indicate that this is the case. The Tribunal notes that the applicant has not suggested otherwise in her responses to each of these invitations. Therefore, the Tribunal is satisfied that the applicant does not meet the requirements of paragraph 187.223(1)(a).

43. Correspondingly, paragraph 187.223(1)(b) requires the position to be in respect of an applicant who is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa. As set out in the Tribunal section 359A invitation (dated 10 April 2017) the applicant has been granted Subclass 572 and 485 visas whilst in Australia. Notably, the applicant has not suggested to the contrary at any time during the conduct of the review. Consequently, there is little in the evidence to suggest that the applicant has ever been granted a Subclass 457 visa. Accordingly, the Tribunal also finds that the applicant does not meet the requirements of paragraph 187.223(1)(b).

44. As a result, the Tribunal finds that the applicant does not meet the requirements of paragraphs 187.223(1)(a) and (b), subclause 187.223(1) and clause 187.223 under the Temporary Residence Transition Stream at the time of its decision.

1. Clause 187.242 applies to applicants seeking a Subclass 187 visa in the Agreement stream. Paragraph 187.242(1)(a) requires the position to which the application relates to be a position nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party.

2. In its section 359A letters (dated 10 April 2017 and 22 December 2017) the Tribunal invited the applicant to comment upon the fact that there was no evidence to suggest that the position nominated by Barima Enterprise Pty Ltd was in accordance with a labour agreement that was in effect. The Tribunal observes that the applicant and/or her representative have not disputed this, or submitted any evidence to suggest the contrary at the time of decision.

   Other Matters

3. On 2 January 2018[22] the applicant responded to the Tribunal’s second combined section 359A / subsection 359(3) invitation by outlining the circumstances of her employment with Barima Enterprise Pty Ltd, including her original trial as a hairdresser in this business and the nature of her employment in the 2 ½ years that followed. Although the applicant indicated that the director of Barima Enterprise Pty Ltd had moved to Queensland[23], she likewise advised that she had remained in charge of the salon in Wodonga.

   [22]    T1, f.122-124 & 130-132 reverse

   [23]    T1, f.131; second paragraph

4. The applicant asked the Tribunal to consider her case on compassionate grounds on the basis that not only had she and her spouse been working full-time in Australia and paid their taxes, but their two children were in primary school and kindergarten respectively, and the family had established their lives in Wodonga. In addition, the applicant advised that over a period of 8 years she and her family had spent considerable amounts on legal advice and immigration assistance to achieve their immigration goals. The applicant further stated that she and her family had nothing to return to in Mauritius, and she promised that they would remain in Wodonga and work in their nominated occupational fields.  

5. In support of these submissions the applicant submitted the following additional evidence to the Tribunal:

   ·The applicant’s PAYG Summaries[24] showing gross payments from her employer of $31,998 in 2016 and $44,691 in 2017;

   ·An employment reference (dated 1 January 2018[25]) from Ms F. Stoner, a Human Resources  and Industrial Relations Specialist, attesting to the applicant’s professionalism and stating that she would not hesitate to recommend the applicant for any employment opportunity for which the latter was suitably qualified;

   ·Three personal character references (dated 30 December 2017[26] and 1 January 2018[27]) from Australian residents attesting to the applicant’s professionalism as a hairdresser,  honesty and good character;

   ·A tax invoice (dated 17 November 2017[28]) issued to the second-named applicant by St Monica’s Primary School relating to the 2017 school fees for the third-named applicant;

   ·Statements[29] issued to the applicant by the Riverview Child Care Centre in Wodonga for the period 19 – 28 December 2017 for the fourth-named applicant’s kinder enrolment; and

   ·A copy of an email (dated 20 December 2017[30]) confirming that the applicant had paid the rent due for her accommodation.  

   [24]    T1, f.114 reverse, 115 reverse, 125-126

   [25]    T1, f.120 & 129

   [26]    T1, f.119, 119 reverse & 129 reverse

   [27]    T1, f.121 & 130 reverse

   [28]    T1, f.116)

   [29]    T1, f.117-118 reverse & 127-128

   [30]    T1, f.113 reverse - 113

6. Accordingly, given the applicant’s submissions and this additional evidence, the Tribunal has considered whether there is anything in her circumstances that would justify the exercise of its discretion under subsection 363(1)(b) of the Act, or referral to the Minister under section 351 of the Act.

   (a)The Tribunal Discretion to Adjourn the Review:

7. Under subsection 363(1)(b) of the Act the Tribunal has discretion to adjourn the review from time to time where this would be appropriate to an applicant’s circumstances.

8. In considering its discretion, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[31] and Manna v Minister for Immigration and Citizenship[32] where the Courts have held that it is not required to indefinitely defer its decision-making processes.

   [31] [2002] FCA 617

   [32] [2012] FMCA 28

9. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[33] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[34] which also considered this issue.

   [33] [2013] HCA 18 (8 May 2013)

   [34] [2014] FCAFC 1 (4 February 2014)

10. Correspondingly, the Tribunal has taken into account the decision in Chen v Minister for Immigration and Border Protection[35] where the Court upheld a decision by the Tribunal (differently constituted) not to defer its decision in respect of a Subclass 457 visa application pending finalisation of a related employer application before the Department.

    [35] [2016] FCCA 2351

11. The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[36], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time “eventually to put an end to the review process”.

    [36] [2011] FCA 759 at [22]

12. Accordingly, the evidence and submissions regarding the exercise of the Tribunal’s discretion under subsection 363(1)(b) of the Act are discussed follows:

    (i)The Applicant’s Awareness of the Relevant Issues:

13. The Tribunal notes that in this case the applicant provided a copy of the primary decision record (dated 6 June 2016) relating to the refusal of her Subclass 187 visa application with the application for review she lodged on 23 June 2016. In particular, this decision record stated that, given the appointment to which her visa application related had not been approved, the applicant did not meet the requirements of clause 187.233 in the Regulations, one of the criteria for the grant of her Subclass 187 visa application. It also set out why the applicant did not meet the alternative requirements in clauses 187.223 and 187.242.

14. The Tribunal also observes that the applicant's current representative, a registered migration agent, was named as her representative for the purposes of the application for review lodged on 23 June 2016.[37] Given this, the Tribunal is satisfied that the applicant has had the benefit of professional advice from a registered migration agent since she lodged the application for review in June 2016. In turn, the Tribunal finds that the applicant has been aware for approximately 19 months that her visa application did not meet the requirements of clauses 187.233, 187.223 or 187.242 for the grant of a Subclass 187 visa.

    [37]    T1, f.133-134

15. In addition, the Tribunal also wrote to the applicant under section 359A of the Act on 10 April 2017 and 22 December 2017, at which time it outlined the relevant issues in the review for the applicant.

16. As a consequence, the Tribunal is satisfied that this is not a case where the applicant lacked awareness of the issues in dispute, or where she has not had the opportunity to comment on / respond to these issues, or to provide evidence, in support of her application for review.

17. In the present case, the Tribunal acknowledges that the applicant has not made repeated requests to adjourn the review. On the other hand, the central issue in this review is whether the applicant meets the requirements of clause 187.233, as outlined in Singh’s case.[38] Given this, in circumstances where the relevant employer nomination application lodged by Barima Enterprise Pty Ltd was refused on 31 March 2016, and affirmed by the Tribunal on 21 December 2017, the adjournment of the review pending the processing of any new employer nomination application that might be lodged in the applicant’s favour with the Department now or in the reasonably foreseeable future cannot affect or alter the outcome of this review in terms of clause 187.233.

    [38] [2017] FCAFC 105

18. As such, the Tribunal observes that an adjournment of the review to allow the applicant more time to find a new sponsoring employer would achieve little. Given this, the Tribunal considers that the sentiment expressed by Perram J in Ghori's case is relevant to the exercise of its discretion under subsection 363(1)(b) in this case. This is because there is little in the evidence the applicant has presented to suggest, in view of the judgment in Singh’s case[39], that it would be unreasonable for the Tribunal to end the review process in this matter.

    [39] [2017] FCAFC 105

19. Consequently, applicant’s awareness of the refusal of her visa application on the basis that she did not meet clause 187.233, the fact that she was represented by a registered migration agent, the wording of this provision and the judgment in Singh’s case[40] do not suggest it would be appropriate for the Tribunal to exercise its discretion under subsection 363(1)(b) of the Act in the applicant’s favour.

    (ii)The Applicants’ Personal Circumstances:

    [40] [2017] FCAFC 105

20. The Tribunal has also considered whether there is anything in the personal circumstances of the applicant and her family that would point to exercise of its discretion under subsection 363(1)(b) of the Act in her favour.

21. The Tribunal acknowledges that the applicant’s PAYG Summaries and her employment and personal references confirm that she has been employed as a hairdresser in regional Victoria. Although the applicant has not provided documentary evidence to confirm her spouse’s current employment, the Tribunal also accepts her submissions that this is the case and that both parties have paid taxes in Australia. As a result, the Tribunal has taken into account the potential the applicant and her spouse have to contribute to the Australian community through their respective skills and employment in their nominated occupations.

22. Further, the Tribunal has considered the circumstances of the applicant’s children, the third and fourth-named applicants. In particular, based on the school and kindergarten invoices/statements before it, the Tribunal accepts that the third-named applicant is currently enrolled in an Australian primary school, and that the fourth-named applicant is enrolled in kinder. It also accepts that the applicant’s children have likely formed a greater attachment to Australia through their acquisition of English language skills and personal friendships, especially in comparison to their more distant ties to Mauritius.

23. The Tribunal recognises that the applicants would prefer to remain in Australia, given the fact that they have been in Australia for over 8 years, and the fourth-named applicant’s birth in Australia. It also acknowledges the applicant’s submission that they do not have anything left in Mauritius because they have started a new life in Wodonga. In addition, the Tribunal understands the applicants’ personal goals and notes that they are not, as such, without merit. It further recognises that the applicants’ current circumstances hold personal significance for each of them individually and as a family unit.

24. On the other hand, the Tribunal notes that the personal circumstances that have been put forward on behalf of the applicants have little relevance to the ability of the applicant to meet the requirements of clause 187.233, or the alternative provisions in clauses 187.223 and 187.242.

25. Accordingly, the Tribunal is not satisfied that the applicants’ personal circumstances, whether considered on an individual or cumulative basis, constitute particularly persuasive grounds for adjourning the review for a reasonable period to allow the applicant to meet the criteria for the grant of the Subclass 187 visa. As noted previously, Singh’s case[41] confirms that the applicant is tied to the factual circumstances relating to the associated nomination application she originally identified when she lodged her visa application 29 August 2015.    

    Summation:

    [41] [2017] FCAFC 105

26. As outlined above, in considering its discretion under subsection 363(1)(b) of the Act, the Tribunal has had regard to the applicant’s submissions (dated 2 January 2018[42]) regarding her personal circumstances and her reasons for being allowed to remain in Australia.

    [42]    T1, f.122-124 & 130-132 reverse

27. On the other hand, the Tribunal notes that there is judicial guidance to the effect that it is not bound to defer its decision indefinitely. The Tribunal also observes that the purpose of the review process is not directed at allowing an applicant to achieve either long-term temporary or permanent residence in Australia in circumstances where the evidence indicates that they do not meet the criteria for the grant of a visa. Nor is it the purpose of the review to provide the applicant with additional time in which to explore her migration options.

28. In this case, the employer nomination application the applicant identified in her visa application for the purposes of clause 187.233 was refused by the Department; a decision the Tribunal affirmed upon review. The judgment in Singh’s case[43] confirms that the applicant cannot meet the requirements of clause 187.233 by providing evidence of another approved employer nomination, whether from the same or a different employer, at a later date.

    [43] [2017] FCAFC 105

29. As a result, on the basis of the evidence before it, the Tribunal is not satisfied that this is an appropriate case in which it should exercise its discretion under subsection 363(1)(b) of the Act in the applicant’s favour. Rather, the Tribunal considers that this is a case where the sentiment expressed by Perram J in Ghori's case “to put an end to the review process” is relevant.  

30. In reaching this conclusion the Tribunal has also had regard to its statutory obligations under section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975 to ensure that the review is fair, just, informal, economical and quick. Given this, any decision to adjourn the review any further in this case would result in unnecessarily delaying the conduct of the review, contrary to the legislative objects set out in section 353 of the Act and section 2A of the Administrative Appeals Tribunal Act 1975. This is because the decision in Singh’s case[44] means there is little the applicant can do to at the time of decision to meet clause 187.233 of the Regulations.

    [44] [2017] FCAFC 105

31. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further at the time of its decision.

    (b)Ministerial Intervention under Section 351 of the Act:

32. In her submission to the Tribunal (dated 2 January 2018[45]) the applicant requested the Tribunal “grant us our visas to stay in Australia with our family” on the basis that they would remain and work in their nominated occupations in Wodonga.

    [45]    T1, f.122-124 & 130-132 reverse

33. However, the wording of clause 187.233 does not provide the Tribunal with any discretion to waive the requirements of this provision, or to take into account the matters raised by the applicant. This remains so regardless of the applicants’ claimed skills, talents, work ethic, the amount of time they have spent in Australia, their commitment and contribution to the Australian community in regional Victoria, or the existence of any other potentially compassionate circumstances.

34. Importantly, the Tribunal does not have the legal power to waive the mandatory criteria prescribed for a Subclass 187 visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.

35. Although the applicant has not formally requested the referral of her case to the Minister under section 351 of the Act, the Tribunal has considered whether the circumstances of this case would mean it is appropriate to do so.

36. The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted, as this would align with Australian community expectations.

37. However, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals 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.

38. In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.

39. As noted previously, the applicant provided the Tribunal with a copy of the primary decision record that set out the basis for the refusal of her visa application when she lodged her application for review. In addition, the applicant has been represented in relation to review by a registered migration agent since the application for review was lodged. As a result, the applicant has been aware of the basis for the refusal of her visa application for approximately 19 months at the time of the Tribunal’s decision.

40. Nevertheless, the Tribunal understands the applicants’ natural desire to remain in Australia, particularly given their claim that they do not have anything to return to in Mauritius, their individual and respective ages (including those of the two children) and the ties they have developed in Australia since the applicant first arrived here in 2009 as a student visa holder. The Tribunal therefore acknowledges that the applicants’ inability to do so is likely to affect them at a financial, emotional, social and personal level.

41. The Tribunal has also had regard to the labour shortages generally affecting regional Victoria and the positive references work references before it regarding the applicant’s skills as a hairdresser. It has likewise taken into account the fact that the applicants have incurred financial expense in their endeavours to remain in Australia lawfully. 

42. As a consequence, the Tribunal does not seek to dismiss or diminish the concerns the applicant expressed in her submissions (dated 2 January 2018[46]), or how they have affected the parties at a financial, social and emotional level. The Tribunal considers that there are some aspects to the applicants’ claims that raise some compassionate grounds. This is in the sense that there may be scope to argue that Australia stands to receive an economic benefit from permitting the applicant and her spouse to remain here permanently.    

    [46]    T1, f.122-124 & 130-132 reverse

43. On the other hand, there are other facets to the evidence that detract from a referral to the Minister under section 351 of the Act.

44. As set out in its section 359A letter (dated 10 April 2017) the applicant has held Subclass 572 (Vocational Education and Training Sector) student visas and a Subclass 485 (Temporary Graduate) visa whilst in Australia. Both of these visas are temporary visas that do not guarantee permanent residence in Australia.

45. The Tribunal understands that since 2009 the applicants’ have taken steps to establish themselves in Australia, especially given their hope of eventually achieving permanent residence. It appreciates that this may have possibly led the parties to reduce their ties to Mauritius, in terms of property or possessions, in order to fund their new life in Australia. It therefore does not dispute the applicant’s claim that they have little to return to in Mauritius. However, any decision on the applicants’ part to do so is one for which there is an element of personal responsibility and risk, given their temporary resident status.  

1. In terms of the Ministerial guidelines, the Tribunal observes that the refusal of the applicant’s visa application because the related employer nomination was not approved is a circumstance that is anticipated under the legislation.

2. The Tribunal further notes that the applicant advised in her submission (dated 2 January 2018[47]) that her employer had moved to Queensland. As such, this evidence casts doubt on the ongoing nature of the applicant’s employment as a hairdresser in regional Victoria.

   [47]    T1, f.122-124 & 130-132 reverse

3. The Tribunal has also considered the potential hardship the applicants might face if they are required to return to Mauritius. However, the Ministerial guidelines do not focus on the economic or financial hardship non-citizens might face if they do not meet the criteria for the grant of a particular visa and are then required to return to their country of origin. Rather, the emphasis in the Ministerial guidelines is on “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”.[48]

   [48]    Paragraph 4 of the ‘Minister’s Guidelines on Ministerial Powers’

4. Correspondingly, whilst the Tribunal accepts that the applicant’s son and daughter are aged approximately 10 and 4 years respectively, and that the applicant’s daughter was born in Australia, there is little in the evidence to suggest compassionate circumstances regarding their age and/or health and/or psychological state that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to either of them. There is little in the evidence to suggest that the applicant’s family unit would be forced to break apart because one of its members was required to leave, whilst others were allowed to remain in Australia.

5. As a result, there is little in the applicants’ current circumstances as outlined for the Tribunal, that brings them within the non-binding guidelines for section 351 of the Act, or otherwise, to warrant referral to the Minister under section 351 of the Act.

6. In addition, there is no claim or any evidence before the Tribunal that if the applicant returns to Mauritius she, or any member of her family, would face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. As a result, there is little to suggest that Australia would be in breach of its international obligations pursuant to the Refugees Convention and the Refugees Protocol, Article 3 of the Convention on the Rights of the Child, the Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights.

7. Accordingly, on balance, the Tribunal is not satisfied that the evidence before it is sufficient to establish a case that is particularly exceptional, unusual, compelling or compassionate in line with the relevant Ministerial guidelines to warrant referral to the Minister. Nor is it satisfied that this evidence points to circumstances outside the non-binding Ministerial guidelines that would point to such a referral being appropriate in this case.

8. Therefore, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.

9. Nevertheless, the Tribunal notes that the applicants can still make a request directly to the Minister with additional evidence to support their claims for Ministerial intervention under section 351 of the Act.

   (c)The Section 376 Certificate:

10. For completeness, the Tribunal notes that the departmental file relating to the applicant is the subject of a certificate (dated 7 April 2017[49]) pursuant to section 376 of the Act. This certificate states that a departmental officer received certain information in confidence. Therefore, the certificate states that the Tribunal’s use and disclosure of particular information on the departmental file is subject to the provisions of subsection 376(3) of the Act.

    [49]    T1, f.43

100.   In this case, as outlined above, the applicant does not meet the requirements of clauses 187.233, 187.223 or 187.242 for the purposes of the grant of a Subclass 187 visa.

101. Consequently, whilst the section 376 certificate had some relevance to the related application for review lodged by Barima Enterprise Pty Ltd in AAT Case File 1605026, it is not relevant for the purposes of the present review. Accordingly, the Tribunal attaches no weight to the material covered by this certificate.

102. In any event, the Tribunal observes that it discharged its procedural fairness obligations under the Act when it wrote to the applicant under section 359A on 10 April 2017 inviting her to comment on /respond to the section 376 certificate.[50]  In particular, the Tribunal notes that the applicant responded to the allegations that were the subject of this certificate in her statutory declaration (dated 21 April 2017[51]) and in her submissions to (dated 2 January 2018[52]) and a copy of the statutory declaration (dated 24 April 2017[53]) the applicant provided from the director of Barima Enterprise Pty Ltd.

[50]    T1, f.37-62

[51]    T1, f.84 reverse

[52]    T1, f.122-124 & 130-132 reverse

[53]    T1, f.78-83

103.   Notably, on both occasions the applicant denied the allegation that she had entered into a paid arrangement with her employer, Barima Enterprise Pty Ltd to facilitate her application for permanent residence in Australia. Similarly, the director of this company likewise denied the allegations that had been made to the Department.  In addition, the applicant submitted that she had genuinely continued with her employment in Wodonga for this company.

104.   In terms of the validity of this certificate[54], based on the material on the departmental file, the Tribunal is satisfied that the relevant departmental delegate issued the certificate, in writing, on 7 April 2017. It is also satisfied that an officer of the Department received the information the certificate refers to in confidence. As a result, the Tribunal is satisfied that the Department properly gave the certificate and that, therefore, it is valid.

[54]    MFAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

CONCLUSION

105. For the above reasons, the Tribunal finds that the applicant does not meet the requirements of clauses 187.233, 187.223 and 187.242 of the Regulations at the time of its decision.

106.   Accordingly, given the above findings, the Tribunal finds that the applicant does not meet the requirements in the Direct Entry stream, the Temporary Residence Transition Stream or the Agreement Stream at the time of decision, and the visa application must fail.

107.   To meet clause 187.311 the applicant's spouse and children, the secondary applicants, must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 187 visa.

108.   As the applicant does not satisfy the primary criteria for a Subclass 187 visa, the Tribunal finds that the secondary applicants do not meet the requirements of clause 187.311 and, therefore, the criteria for a Subclass 187 visa.

109.   Accordingly, based on the above findings, the Tribunal has no alternative but to affirm the decision under review.

DECISION

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

Danica Buljan
Member