Muthukuda Arachchige Dona (Migration)

[2020] AATA 753

Muthukuda Arachchige Dona (Migration) [2020] AATA 753 (18 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dilani Nimmi Muthukuda Arachchige Dona
Mr Prasanna Kelum Wickramasinghe Wickramanayaka Arachchilage
Master Thisum Angelo Wickramasinghe Wickramanayaka Arachchilage

CASE NUMBER:  1920593

HOME AFFAIRS REFERENCE(S):          BCC2018/854322

MEMBER:Mark Bishop

DATE:18 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2020 at 10:28am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – request for adjournment – COVID-19 virus – physical attendance of hearing – phone hearing offered – Tribunal’s statutory purpose considered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
MIAC v Li (2013) 249 CLR 332

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 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 22 February 2018. 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 (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of not disclosed in decision record.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because on 20 June 2019 a decision was made to refuse the nomination application lodged by Fernando Enterprises (Australia) Pty Ltd. The visa applicant Ms Dilani Nimmi Muthukuda Arachchige Dona was advised of the decision the same day and given an opportunity to comment within 28 days. The applicant did not provide any further information to the Tribunal.

6. The applicants appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.  The review hearing was conducted phone.

7. The applicants were represented in relation to the review by their registered Migration Agent (MA).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is evidence of existence of  the relevant nomination.

   Nomination of a position

10. Clause 187.233 as applicable in this case is set out in full in an 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, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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.

12. On 10 February 2020 the Tribunal advised the applicant in writing of a phone hearing on 18 March 2020 to consider her review application. The Tribunal advised the applicant in writing that she should “provide all documents you intend to rely on to establish that you meet the criterial for a visa”.

13. On 14 February 2020 the Migration Agent (MA) for the applicant filed with the Tribunal an “Appointment of Representative” form.

14. On 20 February 2020 the applicant advised her husband would be absent interstate at the time of the scheduled hearing and she was “somewhat nervous regarding the upcoming hearing and wishes to have the support of her husband at the hearing”.

15. The Tribunal gave full consideration to this request. The High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

16. The review application is a straight forward matter. The criterion is set out in paragraph 11 above. The applicant has had a significant period of time to obtain the necessary documentation and provide it to the Tribunal. At the time of the request for an adjournment there was no evidence the applicant had availed herself of that opportunity. The applicant did not provide any evidence of being “somewhat nervous”. She did not provide a medical report or medical opinion that advised she should not or could not present for a phone hearing with or without the presence of her husband. She did not provide a copy of a psychiatric, psychological or other report prepared by a professional counsellor that outlined the extent or detail of her nervousness and her reasons for thinking she might be unable to attend a phone hearing.  If requested the Tribunal would have been able to make such arrangements. The Tribunal refused the request for an adjournment and on 20 February 2020 again wrote to the applicant setting out hearing particulars and again advised the applicant that she should “provide all documents you intend to rely on to establish that you meet the criterial for a visa”.

17. On 2 March 2020 the applicant was provided with full access of documents pursuant to a request made under s.362A of the Act.

18. On 4 March 2020 the Migration Agent (MA) for the applicant filed with the Tribunal an “Appointment of Representative” form.

19. On 4 March the newly appointed MA for the applicant sought a further adjournment on the grounds he had undertaken representation of the applicant on the review application before the Tribunal. The MA advised he was seeking to contact the employer and he (the MA) presumed the same “standard Tribunal procedure in similar circumstances”. The Tribunal again considered the matters relating to adjournment as set out above in paragraph 15 and the relevant high court authority. The Tribunal is not aware of any practice direction, regulation or practice that required the Tribunal to contact an employer in a circumstance where that employer is not a party to the review application. The applicant provided a copy of the decision record to the Tribunal. The Tribunal, as outlined in paragraph 17 above, provided a copy of that decision record to the MA. The review application stands or falls on its own merits. The Tribunal refused the application for adjournment and again advised the applicant that she should “provide all documents you intend to rely on to establish that you meet the criterial for a visa”.

20. On 11 March 2020 the MA for the applicant wrote to the Tribunal and advised as follows:

    ·I have received instructions from my client that she and her family would prefer to attend the hearing in person to provide evidence at the Tribunal as per the scheduled time and date (0930 hrs on 18 March 2020 at Melbourne).

    ·Therefore, I kindly request to make the necessary arrangements to facilitate this for the clients.

21. On 12 March 2020 the Tribunal acknowledged this request and advised the applicant in writing of the hearing details. The Tribunal again advised the applicant that she should “provide all documents you intend to rely on to establish that you meet the criterial for a visa”.

22. On 17 March 2020 the applicant provided to the Tribunal a “Response to Hearing Invitation” and advised she would take part in the hearing.

23. At 4.30pm on 17 March 2020 (the day before the scheduled hearing) the MA for the applicant wrote to the Tribunal and advised as follows:

    ·My client had earlier requested to attend the hearing in-person, thus the original arrangements to appear by the telephone (since clients are in Tasmania) was changed to physical attendance.

    ·I have submitted the confirmation of attendance and a separate pre-hearing submission for the Member’s consideration earlier today 17 March 2020.

    ·I have received written instructions from my client short while ago (as per the email below and the attached evidence) raising significant concerns about their impending travel to Melbourne from Launceston to attend the hearing tomorrow 18 March 2020. The concerns surround the rapid spread of the COVID-19 virus and the potential social and financial implications should the family travel tomorrow morning as scheduled.

    ·On behalf of my clients, I kindly request the Member to consider the current facts surrounding the health and safety due to COBID-19, and the email below from my client and facilitate the hearing on another day as the client prefers to appear in person before the Tribunal.

24. The Tribunal again gave consideration to this request. The Tribunal again considered the matters relating to adjournment as set out above in paragraph 15 and the relevant high court authority. The Tribunal considers the reasons advanced by the MA for the applicant as set out in paragraph 22 above. The Tribunal is, of course, aware of press commentary relating to the spread of the COVID-19 virus. The Tribunal is also aware of its statutory obligations. The Tribunal has given serious consideration to both matters. The Tribunal is not aware as to why the entire family needs to travel to Melbourne when a no cost alternate of a phone hearing is regularly used in Tribunal proceeding for a range of reasons (applicant being interstate, applicant in a remote location, applicant overseas and applicant request because of illness or incapacity). The Tribunal is aware that despite numerous requests the applicant has not provided the requested information as to an employer nomination.

25. The Tribunal advised the applicant the further request for an adjournment was refused and the Tribunal would conduct the review application hearing by phone.

26. On 18 March 2020 the applicant did not attend the Tribunal for the review application hearing. On the morning of 18 March 2020 the Tribunal attempted to contact the applicant by phone at 9.19am, 9.21am, and 9.25am. The applicant did not answer the phone call.

27. Following a subsequent enquiry by phone by a secondary applicant which confirmed attendance, a fourth attempt to call the applicant was made at 9.38am and the hearing commenced by phone at 9.46am.

28. The applicant, secondary applicant and MA gave evidence to the Tribunal and participated in the review application hearing.

29. At the beginning of the review application hearing the Tribunal explained to the applicant the issue before the Tribunal.

30. The applicant advised the Tribunal she was not able to provide evidence of a nomination approval. The MA for the applicant advised the Tribunal he and the applicant had tried to contact the employer Fernando Enterprises (Australia) Pty Ltd but had been unsuccessful.

31. In evidence the applicant advised the Tribunal she did not have a current nomination and could not provide a copy of a current nomination.

32. There is no information before the Tribunal that suggests the applicant is the subject of a nomination approved by the Minister as required by cl.187.233(3) of Schedule 2 to the Migration Regulations.

33. Accordingly the requirements of Cl.187.233 are not met.

    Secondary Applicants

34. The secondary applicants are members of the family unit of the applicant. As the secondary applicants are not  members of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of a visa, cl.187.311 is not satisfied.

35. As cl.500.311 is not satisfied by the secondary applicant, the Tribunal finds the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa are not satisfied. Therefore the Tribunal refused the application by the secondary applicant for a Regional Sponsored Migration Scheme (subclass 187) visa.

    CONCLUDING PARAGRAPH (ALL ISSUES)

36. The applicant 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 streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Mark Bishop
    Member

    
    

    ATTACHMENT A

    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.