Patel (Migration)

[2020] AATA 4063

Patel (Migration) [2020] AATA 4063 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pamilabahen Rameshbhai Patel

CASE NUMBER:  1836622

HOME AFFAIRS REFERENCE(S):          BCC2017/1466865

MEMBER:Alison Mercer

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 1 September 2020 at 2:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – nomination refused–not the subject of an approved nomination – factors beyond an applicant’s control – no discretion to waive or overlook the requirements of cl.186.223– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 351, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Singh v MIBP [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 April 2017. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate noted that the applicant’s employer, T & A Hakim as trustee for the T & A Hakim Unit Trust, had its nomination of the applicant refused on 16 October 2018.

6. The Tribunal received a review application from the applicant on 13 December 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Amber Gupta, as her representative and authorised recipient for correspondence. The applicant also provided a copy of her employment contract with her nominating employer and a letter of reference from that employer, dated 24 February 2017. She subsequently provided her tax return and PAYG summary statement for the 2015/16 financial year.

7. On 10 February 2020, the Tribunal wrote to the applicant, via her agent, to invite her to attend a hearing on 24 March 2020.

8. On 23 February 2020, an officer of the Tribunal, as directed by the Presiding Member, telephoned the agent to advise that the hearing would be held by telephone due to the outbreak of the COVID19 pandemic.  On the same date, the applicant’s agent advised the Tribunal by email that the applicant did not consent to a telephone hearing, as she was not proficient in English and was concerned that she would be disadvantaged by a telephone hearing.

9. On 24 March 2020, the Tribunal wrote again to the applicant, via her agent, to advise that the hearing would be rescheduled, subject to her providing a written response or comments to information held by the Tribunal, pursuant to s.359A. Specifically, the Tribunal advised the applicant that the Department’s and Tribunal’s records indicate that the applicant’s employer,  T & A Hakim as trustee for the T & A Hakim Unit Trust, did not seek review at the Tribunal of the Department’s decision of 16 October 2018 to refuse its nomination of the applicant. The Tribunal further advised that it therefore appeared that the applicant was not the subject of an approved nomination by T & A Hakim as trustee for the T & A Hakim Unit Trust, and that if it found that, it would have to find that she did not meet cl.186.223.  It further noted that if it found that the applicant did not meet cl.186.223, this would be the reason (or part of the reason) for affirming the decision to refuse her a subclass 186 visa. It further noted that a new nomination (whether by T & A Hakim as trustee for the T & A Hakim Unit Trust or another employer) would not satisfy cl.186.223.  The Tribunal invited the applicant to provide a written response or comments by 7 April 2020, noting that if she did not do so (and if she failed to seek an extension of time to do so), then she would lose her entitlement to a hearing, and the Tribunal might proceed to make its decision on the available evidence.

10. On 7 April 2020, the Tribunal received a response from the applicant’s agent, in which he advised that the applicant had instructed him that she was unable to contact her employer, that the business premises were closed, and therefore she was unsure whether she was the subject of an approved nomination or not.

11. On 3 July 2020, the Tribunal wrote again to the applicant via her agent to invite her to attend a rescheduled hearing by telephone on 21 July 2020 (necessitated by the COVID19 social distancing restrictions) and requesting that she advise whether she required an interpreter as soon as possible. The Tribunal provided a link to its COVID-19 Special Measure Practice Direction – Migration and Refugee Division.

12. The applicant participated in a telephone hearing the Tribunal on 21 July 2020 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent.

13. The applicant told the Tribunal that she was sponsored by her employer for a subclass 457 visa in 2014, and worked there as a Cook until 2018.  She lodged her subclass 186 visa application once she had worked there for 2 years on a full time basis, but this application was refused to a lack of documentation. She made another subclass 186 visa application after this, with more documents, which is the visa application that is under review.  She confirmed that she understood that her visa application was refused because the employer’s nomination was refused on 16 October 2018. The applicant told the Tribunal that in the last 6 months she worked for that employer, she began to suspect that the employer was not paying her superannuation or taking out tax contributions on her behalf.  When she pressed him to receive payslips and a PAYG summary statement, he always found excuses not to provide them to her. Ultimately, she rang the accountant for the business, and was told that her employer had sold the business to another person. The applicant said that she continued to work there until the new owner indicated that he was going to pay her less, after which she left. The applicant told the Tribunal that this was around early 2018. She tried contacting the original owner many times but he would not respond to her calls. The applicant said that she was now working part time for an agency that prepared food for hospitals. She told the Tribunal that she had been loyal and worked hard for her nominating employer for several years, and it was outside her control that the nomination was refused, and that the employer did not seek review of that decision. She noted that she had been through a lot of stress and distress as a result, and had not seen her family in India for 8 years.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

15. 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.

16. 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.

17. As noted by the delegate, the nomination of the applicant by her employer, T & A Hakim Pty Ltd as trustee for the T & A Hakim Unit Trust, was refused by the Department on 16 October 2018.  As put to the applicant pursuant to its s.359A letter, the Tribunal has no record that the employer sought review of that decision within the prescribed timeframe for doing so. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by T & A Hakim Pty Ltd as trustee for the T & A Hakim Unit Trust and thus cannot satisfy cl.186.223(2). She therefore cannot meet cl.186.223 as a whole.

18. As discussed at hearing, cl.186.223(2) confers no discretion on the decision maker (whether the delegate or Tribunal on review) to waive the requirement to have an approved nomination, and/or to take into account any compassionate or compelling circumstances that may account for the absence of a nomination and/or affect the circumstances of an applicant.

19. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if she were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

20. The Tribunal considers that, although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 186 visas. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable).

21. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

22. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.186.233 in relation to a subclass 186 visa application made prior to 18 March 2018, as is the case here.

23. As discussed with the applicant at the hearing, the Regulations do not confer any discretion on the Tribunal to waive or overlook the requirements of cl.186.223, even where the lack of a an approved nomination is due to factors beyond an applicant’s control (as the Tribunal accepts is the case here).

24. Therefore, the Tribunal must find that cl.186.223 is not met, and that the applicant cannot be granted a subclass 186 visa in the TRT stream. The applicant has 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

25. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alison Mercer
    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.