Patel (Migration)

[2021] AATA 5020

Patel (Migration) [2021] AATA 5020 (26 October 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Amitkumar Dashrathlal Patel Mrs Hetalben Amitkumar Patel Miss Freya Patel

CASE NUMBER:  1826214

HOME AFFAIRS REFERENCE(S):          BCC2017/1635522

MEMBER:  Namoi Dougall

DATE:  26 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2021 at 11:56am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Motor Mechanic – subject of an approved nomination – postponement request – skill assessment program – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
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

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 (Cth) (the Act).

1. The applicants applied for the visas on 8 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

1. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

1. 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 Motor Mechanic (ANZSCO 321211) with Campbell’s St Autos Pty Ltd (the company).

1. The delegate refused to grant the visas because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations because the company’s associated nomination was refused by the Department on 13 July 2018.

1. On 12 October 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicants to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review. The relevant information before the Tribunal was that the nomination application made the company was refused by the Department on 13 July 2018 and the application for review of that decision was finalised as withdrawn by the Tribunal on 12 August 2021.

1. The Tribunal’s letter also stated that the information is relevant to the review because one of the requirements for grant of this visa is that the relevant nomination, that is the nomination of the position that the applicant relied on when lodging his visa application, has been approved. The letter also stated that if the Tribunal finds that the relevant nomination has not been approved and that the applicant does not meet the requirements of cl.187.233(3) and the decisions under review would be affirmed.

1. On 18 October 2021, the applicant responded to the Tribunal’s letter of 12 October 2021 with a submission and a copy of receipts for the payment of the fee to Trades Recognition Australia on 6 March 2019, 20 May 2019 and 7 February 2020. In the submission the applicant stated that the nomination was refused on 13 July 2018 and the next day his mother died, and he started feeling depressed. He did start his skill assessment program and worked for the company for about 3 months until they told him they did not have enough work and closed the business. The applicant further submitted that he tried to find another job in the regional area but could not, so he worked for a year in another company but due to the COVID-19 Pandemic he lost his job again. The applicant requested that the hearing be postponed for 6 months to allow him to finish the skill assessment program.

1. The Tribunal considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review.

1. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

1. The Tribunal has had regard to the fact that the visa application was lodged over 4 years ago on 8 May 2017 and refused on 13 July 2018 for the reasons stated above. The applicants provided a copy of the delegate’s decision record with the review application and, therefore, they have been aware for over three years of the reasons for the visa application refusal which was that the company’s nomination needed to be approved. The Tribunal has taken into account the unfortunate circumstances of the death of the applicant’s mother, but the applicant was able to find another employer after he left the company. The Tribunal has also taken into account the fact that the applicants have had the benefit of representation from a registered migration agent in order to assist them with this application.

1. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the central issue arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that the applicant meets one of the essential requirements for a

   Subclass 187 visa application.

1. The applicant appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

1. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of cl.187.223 and the application for nomination for the position of Motor Mechanic has been approved.

Nomination of a position

1. 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.

1. 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 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 six months after the nomination of the position was approved.

1. At the hearing the Tribunal went through the Tribunal’s letter of 12 October 2021 explaining that the issue to be determine was cl.187.223 and that as the Tribunal finalised the company’s application for review as no jurisdiction the Department’s decisions to refuse the nomination application of the company in relation to him still stood. Therefore, in those circumstances the Tribunal would find that the applicant does not meet the requirements of cl.187.223.

1. Mr Patel stated that he received the refusal and his mother died the next day. He had started his skills assessment and the work shut down before COVID-19 Pandemic. The Tribunal asked if was he is still preparing for the skill assessment and the applicant stated he started before COVID-19 Pandemic shutdown but due to the shut down he did not complete it as businesses were shut and he now needs more time to prepare for his skill assessment.

1. At the hearing the Tribunal asked if the applicant had been working during the past 2 years and the applicant stated that no he could not complete because of COVID-19 and he moved to Melbourne and now he is looking for a job in his field. It is very hard to find a job in his field and when he does, he will go ahead with his assessment. The applicant confirm he was in Melbourne during 2018 and 2019 and he currently lives in Shepparton.

1. The Tribunal referred to the applicant having time since his visa was refused and before the COVID Pandemic shutdown occurred and during the periods when there was no shut down. The Tribunal further explained that the assessment is not the issue as the issue is that without an approved nominator the applicant cannot meet the requirements of cl.187.223. The Tribunal also explained that the person who made the application must be the employer of the applicant and that this is not the case as he is not working for the company. For these reasons and due to the length of time since the application was made and the Department’s decision the Tribunal explained that it will not delay making its decision for 6 months.

1. At the hearing, the applicant requested that the Tribunal delay making its decision for 6 months. As referred to above, the Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, to provide a mechanism of review that: is accessible, fair, just, economical, informal and quick as well as

proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.

1. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act, however, the Tribunal is not prepared to postpone making it’s decision on the basis set out in the applicant’s submission and at the hearing. The company’s nomination application was refused by the Department on 13 July 2018 and the Tribunal finalised the company’s application for review as no jurisdiction on 12 August 2021. Further, the applicant stated in his submission that the company had now closed. As stated above the Tribunal has taken into account the unfortunate circumstances of the applicant’s mother’s death but he was able to move to Melbourne in 2018 to 2019 and find another employer after he ceased working for the company. The Tribunal is aware that the COVID-Pandemic does raise difficulties, but the Tribunal did suggest that the applicants have other migration and legal options and strongly advised that the applicant seek advice from his migration agent on the options available.

1. The Tribunal finds that the nomination for the position of Motor Mechanic has not been approved and that there is no approved nomination for the purposes of the application. Therefore, cl 187.233 is not met.

1. In relation to the other applicants, the Tribunal notes that cl.187.321 of Schedule 2 to the Regulations requires that secondary visa applicants be members of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying primary criteria for the grant of the visa. As the applicant has not met the requirements for the grant of a Subclass 187 visa, and is not the holder of a Subclass 187 visa, it follows that the other applicants do not satisfy the requirements of cl.187.311 and the Tribunal finds accordingly.

1. 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

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

Namoi Dougall 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

(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.