Phogat (Migration)

[2020] AATA 4098

Phogat (Migration) [2020] AATA 4098 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Meenu Phogat
Mr Shakti Singh
Miss Sakshi Phogat
Miss Shruti Phogat

CASE NUMBER:  1723184

HOME AFFAIRS REFERENCE(S):          BCC2016/3944830

MEMBER:Ian Berry

DATE:17 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 September 2020 at 9:41am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – dressmaker and tailor – no approved nomination – not the subject of an approved nomination – Ministerial intervention request refused –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 187.233

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 Immigration and Border Protection 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 23 November 2016. 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 the Direct Entry stream, to work in the nominated position of dressmaker and tailor (ANZSCO 393213).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the business activity statement for the quarter ending 31 March 2017 stated wages expenditure of $13,500.00 and non-capital purchases of $6,360.00. The delegate stated that this approximated the total annual wages expenditure at $52,900.00. As the base salary for the nominated position per annum is $54,000.00 and with the superannuation contribution aggregated at $59,130.00, it did not support that the business has the financial capacity to be able to pay the full-time salary for the nominated position.

6. The applicant appeared before the Tribunal on 27 August 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s youngest daughter Miss Shruti Phogat. The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

7. The applicants were represented in relation to the review by their registered migration agent Miss D. Machado Medeiros Allen MARN 2014135 of Migration Guru Pty Ltd.

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 whether the applicant has an approved nomination which has not been withdrawn in accordance with cl.187.233.

   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 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 the 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 8 August 2017, the applicant’s employer had its nomination application refused. The nominator Sakshi Shruti International Pty Ltd then made an application to the Tribunal for review of that decision. After a hearing, the Tribunal affirmed the delegate’s decision on 6 July 2020.

13. On 23 July 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide in writing, information or comments concerning the Tribunal affirming the delegate’s decision concerning her nominator’s application. While the information and comments did not address the adverse information, the Tribunal decided to provide the applicants with the opportunity to put forward the evidence supporting the application to grant the applicant’s visa. Incidental to the review of the applicants’ visas, they sought the Tribunal’s recommendation for Ministerial intervention.

14. Either in documentation or oral evidence at the hearing, no evidence was provided to the Tribunal that the applicant was the subject of an approved nomination which had not been withdrawn.

15. Therefore, cl.187.233 is not met.

16. 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.

17. In respect of the second, third and fourth named applicants, the Tribunal notes there is no information before it to suggest that the second, third and fourth named applicants meet the primary criteria for the grant of the visa. The second, third and fourth named applicants applied for the visa based on being a member of the family unit of the applicant. As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the second, third and fourth named applicants, as they are not of the family unit of a person who satisfies the primary criteria for the visa.

    Ministerial intervention request

18. The applicant sought Ministerial intervention for herself and her family.

19. The applicant is a married woman (aged 45) who resides with her husband Mr Shakti Singh (aged 44) and her daughter Miss Shruti Phogat (aged 17). The oldest daughter Miss Sakshi Phogat (aged 21) returned to India in August 2018 and is studying Biotechnology. The Tribunal does not know of the oldest daughter’s intention of returning to Australia.

20. As explained by the applicant, she (with her family) entered Australia, initially on a visitor visa and then as a dependent of her husband who was approved as a 457 visa holder. He was refused as a 186 applicant and on review, the Tribunal affirmed the delegate’s decision. The applicants settled in Nerang on the Gold Coast hinterland, with Mr Singh incorporating a company Sakshi Shruti International Pty Ltd (the company) on 23 August 2016. The company established a business in Nerang making Indian clothing along with offering repairs, alterations and services for clients requiring uniforms and clothing. The applicant is a dressmaker/tailor by trade and previously held employment positions in Australia undertaking repairs and alterations. The applicant had worked in India as a dressmaker/tailor before travelling to Australia in 2012.

21. The business is continuing to do business though as described by the applicant, COVID19 has significantly affected its profits. The applicants receive monetary assistance from a relative during these difficult times. In the submissions received after the hearing, the applicant provided bank statements. There was not a submission as to the veracity of the bank statements, though the Tribunal noted the applicant had credited to that account amounts which may have been wages. However, the second named applicant, the sole director of the applicant’s employer, provided a reference from his employer Toll, of his having been employed since 18 June 2018. His position is described as a permanent contract courier.

22. Further evidence concerning daughter Shruti has been provided. It relates to her school endeavours, though without explanation, it was difficult to understand as to how it would assist. The documents ‘Intended Learning – Snapshot’ and ‘Learning Snapshot’ did not have information which may have some information to decide whether it should be considered in relation to the Ministerial intervention. Photographs were supplied but without reference as to who the people were. However, the Tribunal accepts that Shruti is a dedicated student who has immersed herself into Australian culture and has performed services at her school which she did not have to do. The community service work is certainly appreciated at the school. The Tribunal also accepts that the photographs are of relatives of the applicants. They have a convivial relationship and appear happy.

23. The Tribunal has considered the applicant’s request for the Tribunal to consider referring her matter for the exercise of Ministerial intervention pursuant to s.351 of the Act. Section 351 provides a non-compatible, personal discretion of the Minister for Home Affairs to intervene in a case to grant a visa to an applicant after an unsuccessful review application, if the Minister considers that there are unique or exceptional circumstances to do so. The Ministerial Guideline matters are attached to this decision.

24. The applicant’s mother and father continue to reside in New Delhi, India though both have retired. She has two sisters and one brother. While she is the oldest child, next is her sister Neelu who is married with one child and lives in Browns Plains, Brisbane. Also, her brother Varun is also married with one child and lives in Kuraby, Brisbane. Her youngest sister Pooja resides in India where she is married and has two children.

25. The applicant’s husband Mr Singh has a mother who resides in a village in India. His father has died. He has a brother Mr Sanjay Singh who resides in Melbourne and has been there for about 10 years. Mr Sanjay Singh is married with two children and is the manager in an Indian groceries business. His wife works as an accountant in Melbourne. His sister Sunita, is married and resides in Haryana, India.

26. The Tribunal acknowledges the concerns raised by the applicant and her migration representative about the applicant and her family having established Australia as their home and having contributed to the Australian economy. The youngest daughter has involved herself in voluntary work through her school and next year intends to study accountancy and Asian studies at Griffith University. In particular, the applicant has family members in Australia.

27. However, the Tribunal does not consider this issue in and of itself enough to meet the Ministerial Guidelines for intervention. While the Tribunal acknowledges the applicants’ contribution to the Australian society and economy, it does not consider that this is sufficiently compelling or unique to warrant Ministerial intervention. It declines to refer the matter but notes that it remains open to the applicant and her migration representative to make such a request directly to the Minister if they believe the applicant’s circumstances do fall within the Ministerial Guidelines or otherwise demonstrate compelling or unique factors.

    DECISION

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

    Ian Berry
    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.

    ATTACHMENT B

    Ministerial Intervention Principles

    The following principles apply to the intervention powers covered by these guidelines:

    • it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia;

    • consideration of a case for intervention is at my discretion and is not an extension of the visa process;

    • if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene;

    • I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful noncitizen;

    • I expect a person requesting my intervention to:

    ◦ be a lawful non-citizen if they are in the community when they make their intervention;

    request and remain a lawful non-citizen until that request is finalised;

    ◦ cooperate in ensuring that their travel documents are available and valid, and

    ◦ continue to engage with the Department and assist with any enquiries, particularly those concerning their identity

    • I expect a person requesting my intervention to continue to make arrangements to leave Australia while their request is being progressed. If the request is unsuccessful, I expect any person who is the subject of the request to leave Australia.

    Cases that should be brought to the Minister’s attention

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    •strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

    •compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

    •exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    •circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

    •the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control

    •a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human

    

    Other relevant information

    For all cases referred to me under these guidelines, the Department will provide information on

    any other relevant issues, including the following:

    •circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

    •circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

    •whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations

    •whether there are character concerns in relation to the person, particularly concerns related to criminal conduct

    •information about a person’s history of compliance with Australian laws, including migration laws, such as:

    •  any offence or fraud against the migration or citizenship legislation

    •  any failure to comply with their visa conditions

    •  any periods as an unlawful non-citizen in the community

    •  their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents

    •details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case

    •the level and nature of the person’s integration into the Australian community and the length e been in Australia, both as a lawful and unlawful non-citizen.

    Cases that should not be brought to the Minister’s attention

    My intervention powers are not available if:

    •there is no review decision on the case by a relevant review tribunal or

    •I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.

    Inappropriate cases to be considered

    Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:

    •the request is made by a person who is not the subject of the request or their authorised representative

    •the person is in the community and:

    •      is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or

    •      does not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)

    •the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa

    •the person’s visa has been cancelled because they breached their visa conditions

    •the person has had a visa refused because they did not comply with the conditions of a previous visa

    •the person has been refused a visa or has had a visa cancelled on character grounds

    •ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect

    •the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

    •the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)

    •the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore

    •the person has left Australia

    •the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department

    •the person has an ongoing application for merits review of a visa decision with a relevant review tribunal

    •the person has had a remittal or a set aside decision from a relevant review tribunal or a court

    •the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E

    •the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines

    •a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department

    •the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date es claims only in relation to Australia’s non refoulement obligations.