Patel (Migration)

[2021] AATA 226

Patel (Migration) [2021] AATA 226 (25 January 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Asha Manishkumar Patel
Mr Manishkumar Laxmanbhai Patel
Ms Tvisha Patel
Ms Ditya Patel

CASE NUMBER:  1804551

HOME AFFAIRS REFERENCE(S):          BCC2016/757488

MEMBER:Amanda Ducrou

DATE:25 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 January 2021 at 11:10am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no appearance at hearing – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 362B, 363(1)(b), 379A(5)

Migration Regulations 1994 (Cth), Schedule 2, cls 186.223(2), 186.311

CASES

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

Kaur v Minister for 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 on 20 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 February 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager (ANZSCO 149212).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination lodged by the sponsor, D’Angelo Engineering Pty Ltd, was refused by the Department on 15 January 2018 and, as such, there is no approved nomination.

6. The Tribunal received an application for review from the applicants on 21 February 2018. The Tribunal received a copy of the delegate’s decision record with the application. The application states that the applicants had appointed Mr Badrinath Thungathuthi, a registered migration agent as their representative and authorised recipient.

7. On 4 June 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which it considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The letter was sent by email to the applicants via their representative at the email address provided in connection with the review.

8. The Tribunal’s letter asked the applicants to provide their comments or response by 18 June 2020. The letter noted that the applicants could request an extension of time provided that any such request was received by 18 June 2020. The letter explained that if their comments on or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicants’ views on the information and that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the invitation to give comments or respond was properly sent to the correct email address, being the last email address provided in connection with the review.

9. On 16 June 2020 the applicants responded to the Tribunal’s letter of 4 June 2020 by email. The response included written submissions from the applicant in an email to the Tribunal dated 15 June 2020 and documents in support of the application for review.

10. On 18 June 2020 the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicants to appear by telephone to give evidence and present arguments at a hearing on 3 July 2020 at 10:00am. The Tribunal is satisfied that the hearing invitation was properly sent to the correct email address, being the last email address provided in connection with the review.

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the confined legal nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The hearing invitation stated that to help slow the spread of COVID-19 (coronavirus) the AAT has not been holding face-to-face (in-person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice. The invitation went on to state that as the Tribunal is not holding in-person hearings at the AAT, the Tribunal is arranging for the applicants to appear by telephone and that the Tribunal will call the applicants at the specified date and time.

13. The hearing invitation listed the contact telephone number recorded by the Tribunal for the applicants. The invitation asked the applicants to advise if this is not the correct number or if they would prefer the Tribunal to call them on another number. The invitation set out information about arrangements for the hearing including the estimated duration of the hearing and that a Tribunal officer would contact the applicants close to the hearing time to ensure that the telephone connection is working. The invitation asked the applicants to advise the Tribunal as soon as possible if they would not be able to participate in the telephone hearing. It went on to advise the applicants that if they were not advised that an adjournment was granted, they must assume that the hearing will go ahead. The invitation stated that if the applicants did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

14. On 24 June 2020 the applicants responded to the hearing invitation by email. Their response was a letter dated 24 June 2020 from the applicant. In the letter the applicant stated that she had uploaded documents regarding her employment claims to the Tribunal (the letter identified the uploaded documents). The applicant’s letter went on to state that she was:

    unable to attend the hearing by telephone. I am in stress and depression with two small kids to look after. I have submitted all the evidences towards my employment claims. Could you please provide me with an opportunity to look for another sponsor.

15. The Tribunal sent the applicants SMS reminders about the hearing 5 business days (on 26 June 2020) and one business day (on 2 July 2020) before the scheduled hearing. The applicants did not respond to the SMS messages.

16. On the date and at the scheduled time for the hearing a Tribunal officer made three attempts to contact the applicants on the telephone number listed as the contact telephone number for the review, being the same telephone number listed on the hearing invitation. The attempts were made at: 10:27am, 10:31am and 10:34am. Each call was automatically redirected to a recorded voicemail service. At 10:29am on 3 July 2020 the Tribunal attempted to contact the applicants’ representative on the telephone number, listed as the contact number for the representative but the call was not answered.

17. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.379A(5) of the Act, the email that sent the hearing invitation has not been returned to the Tribunal as undelivered, and that SMS reminders were sent about the hearing on two separate occasions. It is open to the Tribunal to schedule a hearing for a later date and to invite the applicants to appear and give evidence and present arguments. However, the Tribunal notes that the applicants’ response to the hearing invitation did not indicate when they may be in the position to appear and give evidence at a hearing. The email of 24 June 2020 is the last communication the Tribunal received from the applicants in relation to the review. By the time the email was received the applicants had already provided information and documents in support of their case. There has been no indication that the applicants wish to provide further documents in relation to the review. They did not make a request for a further hearing to be scheduled. The Tribunal had regard to the confined legal nature of the matter at issue in the review, the circumstances of the applicants and the Tribunal’s objective, as set out above. In these circumstances the Tribunal considers that the applicants have had a fair opportunity to give evidence and present arguments and the Tribunal determined to proceed to make its decision without taking further steps to offer another hearing to the applicants and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

18. The applicants were represented in relation to the review by their registered migration agent, Mr Badrinath Thungathuthi.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether there is an approved nomination.

21. The letter that the Tribunal sent to the applicants on 4 June 2020 pursuant to s.359A of the Act provided the following particulars: namely that the nominator, D’Angelo Engineering Pty Ltd had sought review by the Tribunal of the decision made by the delegate to refuse the nomination application made by D’Angelo Engineering Pty Ltd but on 3 June 2020 the Tribunal had affirmed that decision, meaning that the nominator’s application for the nominated position has not been approved as required under cl.186.223(2) of the Regulations. The Tribunal’s letter to the applicants explained that this information is relevant to their review because it is a requirement for the grant of the Subclass 186 visas that the position specified in the visa application is the subject of a current approved nomination and if the Tribunal relies on this information in making its decision, it may find that the applicant is not the subject of a current approved nomination and, therefore, could not satisfy a requirement for the grant of the visa. The letter advised that this then would be the reason, or a part of the reason, for affirming the decision that is under review. The letter advised further that if the Tribunal found that the applicant did not meet the primary visa criteria, then this would be the reason, or a part of the reason, for affirming the decision under review not to grant the second, third and fourth named applicants Subclass 186 visas, as the Tribunal would have to find that they did not meet the requirements in cl.186.311 to be members of the family unit of a person who satisfies the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

22. The written submissions that the Tribunal received from the applicant on 16 June 2020 state (in relevant part):

    D’Angelo Engineering Pty Ltd had nominated me for the Employer Nomination Visa but due to subsequent delay in the process of approval of nomination by the department currently D’Angelo Engineering Pty Ltd has backed out of the process and presently the company is reluctant to support me in the process before the AAT.

    Due to the COVID-19 Pandemic the present situation does not allow me to take up the matter with the company but if the AAT allows an extension, I shall be able to look for another employer and lodge new nomination.

    The delay in the process of grant to visa has been detrimental for the Employer Nomination Visa for me and my family.

    Please allow me an extension for lodging of visa.

23. The documents that the Tribunal received from the applicant on 16 June 2020 are:

    ·bank transaction statements for an NAB Classic Banking account (####-6870) held in the applicant’s name for the period from 21 August 2013 to 20 February 2018;

    ·payslips issued by D’Angelo Engineering Pty Ltd to the applicant for the period from 4 September 2013 to 6 February 2018;

    ·notices of assessment issued by the Australian Taxation Office for the applicant for the 2013/2014, 2014/2015, 2015/2016, 2016/2017 and 2017/2018 financial years;

    ·PAYG payment summaries issued by D’Angelo Engineering Pty Ltd to the applicant for the 2013/2014, 2014/2015, 2015/2016, 2016/2017 and 2017/2018 financial years;

    ·letter dated 12 February 2018 from Mr Simon Hu, General Manager, D’Angelo Engineering Pty Ltd attesting to the applicant’s employment by D’Angelo Engineering Pty Ltd as a full-time Customer Service Manager since 4 September 2013. The letter lists the major duties and responsibilities included in the applicant’s position and notes that the applicant’s duties and responsibilities are not limited to the listed duties and responsibilities. Amongst other matters, the letter states that “Asha is a very honest and hard-working employee who has proven to be a real asset to our organization.”;

    ·an organisational chart dated 20 February 2018 detailing the organisational structure of D’Angelo Engineering Pty Ltd. The positions in the organisational structure include the position of Customer Service Manager, held by one employee. The organisational chart is signed by Mr Hu.

24. The documents provided to the Tribunal confirm that the applicant was employed by the nominating business. The Tribunal acknowledges that, as submitted by the applicant, Departmental delay in the assessment of the nomination application made by D’Angelo Engineering Pty Ltd has had a detrimental effect on her and her family as the delay led to D’Angelo Engineering Pty Ltd backing out of the nomination process and becoming reluctant to support her application for review by the Tribunal. The Tribunal had no reason to doubt that as a result of the COVID-19 pandemic it has not been possible for Mrs Patel to take the matter up with D’Angelo Engineering Pty Ltd and the COVID-19 pandemic has affected her ability to look for another employer willing to lodge a new nomination application. The circumstances that have led to the refusal of the nomination application and to the refusal of the application for the visas, have placed Mrs Patel in a most unfortunate position, which is not of her own making and would appear to be unfair. The Tribunal acknowledges that Mrs Patel has been placed in an extremely distressing situation and notes the submissions she made about her stress and depression and having two small children to care for.

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

26. In doing so, the Tribunal had regard to 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 defer its decision-making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) 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 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

27. The Tribunal considered whether, in the circumstances of this case, information that the applicant meets the requirements for the grant of the visas is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

28. The Tribunal received the documents from the applicants in support of the application for review on 16 June 2020 and an email from the applicant on 24 June 2020. The applicants did not request more time to provide further documents and to date, the applicants have not contacted the Tribunal to indicate that further information is forthcoming. The Tribunal had regard to the fact that the application for the visas was refused by the Department on 20 February 2018 because the delegate concluded that the applicants had not demonstrated that there was an approved nomination. The applicants submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicants have been aware for approximately 35 months of the reasons for the refusal of their application for the visas.

29. The issue before the Tribunal in this review is whether or not there is an approved nomination. There is no evidence before the Tribunal that the applicant is the subject of an approved nomination by D’Angelo Engineering Pty Ltd. The nomination application made by D’Angelo Engineering Pty Ltd, being the nomination application in relation to which the applicant applied for a Subclass 186 visa was refused by a delegate of the Minister on 15 January 2018. The decision made by the delegate to refuse the nomination application made by D’Angelo Engineering Pty Ltd was affirmed by the Tribunal on 3 June 2020. Whether there is an approved nomination is a matter of fact that cannot be changed unless a review of the decision to refuse the nomination is pending. No nomination review is pending in this case.

30. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain whether and when the applicants will provide information in writing as to whether they meet the requirements for the grant of the visas. The Tribunal is not disposed to delay making a decision indefinitely.

31. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review further to allow the applicants additional time to demonstrate that they meet the requirements for the grant of the visas.

32. The Tribunal considered the request made by the applicant to defer its decision to allow time for the applicant to have the opportunity to look for another sponsor nomination. The Tribunal declines to defer its decision for a further period, as the outcome of this review will not be changed by the applicant obtaining another nomination because that cannot alter the fact that the applicant cannot satisfy cl.186.223 of Schedule 2 to the Regulations. The applicable legislative criteria for the grant of the visas cannot be satisfied by the lodgement of a subsequent nomination application by the same nominator or by another nominator. The Tribunal considers that this was made clear to the applicants and their representative since they were notified on 4 June 2020 that the Tribunal had affirmed the related nomination refusal decision. The Tribunal is of the view that the applicants have had sufficient time to take steps to organise their affairs. Deferring the Tribunal’s decision further cannot change the key legal issue in this case, being the absence of an approved nomination and cannot alter the inability of the applicants to rectify this now. In the circumstances, the Tribunal does not accept that it is bound by the precepts of natural justice or procedural fairness to defer making its decision.

1. The Tribunal notes that the Department’s file contains a ‘Client of Interest’ in the Department’s electronic records for the nominator, D’Angelo Engineering Pty Ltd indicating that concerns were raised about the nominator being linked to a migration fraud investigation. There is no indication from the Department’s records that this was investigated or proven, or that any other action, allegation or concerns have been recorded in relation to the nominator. There is nothing that indicates that concerns have been recorded in relation to the applicants. The ‘Client of Interest’ note was recorded on 29 July 2016 which is more than four years ago. In view of the lack of substantiation and the age of the note, the Tribunal placed no weight on the information it contained in making its decision in this review.

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

   Nomination of a position

3. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

4. In addition, this criterion also requires that:

   ·the nomination has been approved and has not been subsequently withdrawn;

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of 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.

5. In this case the applicant applied for a Subclass 186 visa on the basis of the nomination application lodged by D’Angelo Engineering Pty Ltd in respect of the applicant, being the nomination referred to in cl.186.223(1) of Schedule 2 to the Regulations. The nomination application was lodged with the Department on 22 February 2016. The nomination application was refused by a delegate of the Minister on 15 January 2018. As a consequence, on 20 February 2018 the applicant’s Subclass 186 visa was refused by the delegate on the basis that there was no approved nomination.

6. The decision of the delegate to refuse the nomination application lodged by D’Angelo Engineering Pty Ltd was affirmed by the Tribunal on 3 June 2020. This means that the matter has been finally determined and there is no approved nomination as required under cl.186.223(2) of Schedule 2 to the Regulations. As a result, the requirement in cl.186.223(2) of Schedule 2 to the Regulations is not satisfied.

7. Therefore, cl.186.223(2) of Schedule 2 to the Regulations is not met.

8. The Tribunal finds that the second named applicant (the applicant’s partner), and the third and fourth named applicants (the applicant’s children) do not meet cl.186.311, which requires them to be a member of the family unit of a person who holds a Subclass 186 visa. There is no evidence before the Tribunal that establishes that the second named applicant, the third named applicant, and the fourth named applicant meet the primary visa criteria in their own right.

9. The applicants have only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

   DECISION

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

    Amanda Ducrou
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.