Peter (Migration)

[2020] AATA 4797

Peter (Migration) [2020] AATA 4797 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Roshan Peter
Ms Thushara John
Master Jovan Roshan Gomez

CASE NUMBER:  1935658

HOME AFFAIRS REFERENCE(S):          BCC2018/2724194

MEMBER:Bridget Cullen

DATE:27 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 October 2020 at 12.38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Maintenance Planner – subject of an approved nomination – compassionate circumstances – health condition following workplace injury – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 11 December 2019 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 20 July 2018. 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 Temporary Residence Transition stream, to work in the nominated position of Maintenance Planner - ANZSCO 312911.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the applicant’s related nomination, lodged by Bhullar Steel Distribution Pty Ltd was refused by the Department of Home Affairs.

6. The primary review applicant appeared before the Tribunal by telephone on 26 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is subject to an approved nomination.

   Nomination of a position

9. 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.

10. 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.

11. On 17 August 2020, pursuant to s.359A, the Tribunal wrote to the applicant in the following terms:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    -      On 20 July 2018, you applied for Employer Nomination (Permanent) (Class EN) (Subclass 186) visas.

    -     It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. For the purposes of meeting cl.186.223(1), you stated that Bhullar Steel Distribution Pty Ltd was your nominating company.

    -     The Tribunal has information that on 19 September 2019, the nomination for the position identified in your visa application was refused. The decision to refuse the nomination has not been reviewed.

    This information is relevant to the review because it suggests that you are not the subject of an approved nomination. The criteria which the Tribunal must look at requires that the nomination be approved and not withdrawn, as required by cl.186.223(2) and cl.186.223(3). Furthermore, lodging a new nomination application will not enable you to meet the criteria for this visa application.

    If we rely on this information in making our decision, we may find that as your nomination has been refused, that you are unable to meet cl.186.223(2), which requires that the nomination be approved. If relied upon this way, subject to any comments or response you make, the information would be the reason, or part of the reason, for affirming the decision under review.”

12. The applicant was represented at the time the letter was sent by Donald Chen, MARN 1066102, a Solicitor with Kinslor Prince Lawyers, Immigration Specialists. In response, on 31 August 2020, Mr Chen responded to the letter, in summary by confirming the applicant agreed with the Tribunal’s analysis of the law, acknowledged that there is no approved nomination for the primary review applicant, and that the Tribunal must affirm the Department’s decision in the application for review.

13. The approach taken by Kinslor Prince Lawyers in this matter is professional, ethical, and of assistance to the Tribunal in conducting the review. By appropriately acknowledging that the applicant does not meet the criteria, the Tribunal has been able to focus on the applicant’s request that the Tribunal refer the matter to the Minister for his consideration.

14. It follows that the applicant is not subject to an approved nomination, and therefore cannot meet cl.186.223(2).

15. Therefore, cl.186.223 is not met.

16. 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.

    MINISTERIAL INTERVENTION

17. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

18. The submissions prepared by Mr Chen were helpful to the Tribunal in understanding the applicant’s circumstances as they are relevant, and contain appropriate detail, supported by evidence. The submissions are structured using paragraph numbers and subheadings and were provided in advance of the hearing. The Tribunal appreciates the professional approach taken in relation to this matter.

19. The Tribunal was presented with the following reasons that the matter should be referred to the Minister for consideration:

    -The applicant’s health following his workplace injury;

    oThe Tribunal notes that the applicant was crushed by a heavy steel beam on 20 March 2018, whilst at work. The applicant suffered the following:

    §A dislocated right knee and open right fibula fracture;

    §Right leg compartment syndrome;

    §Right sciatic, Tibial and peroneal nerves bruised at knee;

    §Transacted right popliteal artery and vein;

    §Superficial abrasion of abdomen;

    §Massive blood loss and anaemia;

    §Pulseless electrical activity cardiac arrest;

    §Aspiration pneumonia; and

    §A hypoxic brain injury due to the lack of oxygen to the brain as a result of the accident.

    oIt is further noted that the applicant is still recovering from the work injury, over two and a half years later.

    -Healthcare situation in India and the COVID-19 pandemic; and

    -Unfair/Unreasonable Results of the Application of the Legislation; and

    -The applicant’s settlement and connections with the Australian community.

20. The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Bridget Cullen
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.