Sam (Migration)
[2017] AATA 1868
•6 October 2017
Sam (Migration) [2017] AATA 1868 (6 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Oeun Sam
CASE NUMBER: 1702727
DIBP REFERENCE(S): BCC2016/3450122
MEMBER:Danica Buljan
DATE:6 October 2017
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 06 October 2017 at 12:58pm
CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – No approved nomination – Request for adjournment – Public interest - Religious leader - Ministerial intervention
LEGISLATION
Migration Act 1958, s 65, 105, 351, 359A, 363
Migration Regulations 1994, r 1.13A, 1.13B, 5.19, Schedule 2, 186.233, 186.242, 187.233
CASES
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration and Citizenship v You [2008] FCA 241
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292
Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Patel v Minister for Immigration and Citizenship [2011] FCA 1220
Chen v Minister for Immigration and Citizenship [2011] FMCA 859
Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874
KC v Minister for Immigration [2013] FCCA 296
Patel v Minister for Immigration and Citizenship [2011] FMCA 399
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 February 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied to the Department of Immigration for the visa on 18 October 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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 Agreement stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream to work in the nominated position of ‘Minister of Religion’ (ANZSCO[1] Code 272211). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
[1] ANZSCO: Australian and New Zealand Standard Classification of Occupations
The delegate refused to grant the visa on the basis that the applicant did not meet clause 186.233 of Schedule 2 to the Regulations. This was because on 8 December 2016 the Department had refused the nomination application lodged by the applicant’s nominator, the Cambodian Welfare and Culture Centre WA Inc (‘the Association’).
The applicant lodged an application for review with the Tribunal on 16 February 2017, and a copy of the primary decision was included with this application.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4] The applicant was represented in relation to the review by his registered migration agent.[5]
[2] AAT Case File 1702727 (T1), f.14-21
[3] D1 - Departmental file , BCC2016/3450122 folio numbered 1-124
[4] AAT Case File 1702727, folio numbered 1-38
[5] T1, f.6
The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Minister has approved the relevant nomination for the purposes of clause 186.233 of the Regulations.
Nomination of a position
Specifically, for applicants in the Direct Entry stream clause 186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under subregulation 5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). The position must also be the one that was the subject of the declaration that was required to be made as part of the current visa application: subclause 186.233(1).
In addition, this criterion also requires that:
·The person who will employ the applicant was the nominator in the application for approval: subclause 186.233(2);
·The nomination has been approved and has not been subsequently withdrawn: subclauses 186.233(3) and (4);
·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: clause 186.233(4A);
·The position is still available to the applicant: subclause 186.233(5); and
·The visa application was made no more than six months after the nomination of the position was approved: subclause 186.233(6).
According to the primary decision record the applicant provided with the application for review, and confirmed by him at the hearing, the Cambodian Welfare and Culture Centre WA Inc had lodged its application for approval of an employer nomination in the Direct Entry stream for a ‘Minister of Religion’ (ANZSCO Code 272211).[6]
[6] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
In addition, and as set out in the primary decision record, on 8 December 2016 the Department refused the employer nomination lodged by the Cambodian Welfare and Culture Centre WA Inc. Notably, this was the nomination referred to in the applicant’s visa application for the purposes of subclause 186.233(1).[7] The applicant also confirmed these matters during his oral evidence before the Tribunal.
[7] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
The Tribunal notes that the applicant also confirmed that he did not otherwise have an approved nomination from the Cambodian Welfare and Culture Centre WA Inc for the purposes of subclause 186.233(3). The applicant also stated that he understood that his application for review could not succeed without this approval.
Notably, in Singh v Minister for Immigration and Border Protection[8] (‘Singh’s case’) the Full Federal Court considered the wording of clause 187.233, which is worded very similarly to clause 186.233. In Singh’s case the Court held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court found that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application.
[8] [2017] FCAFC 105
As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the ‘position’ referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval.
As a consequence, the decision in Singh’s case means that where the Department refuses a nomination, an applicant will not meet the requirements of clause 186.233 unless the original decision to refuse the nomination is set aside by the Tribunal on review.
In this case, the applicant’s representative advised that the Tribunal (differently constituted) affirmed the decision to refuse the nomination application lodged by the Cambodian Welfare and Culture Centre WA Inc (AAT Case File 1517903) on 23 November 2016.[9]
[9] See AAT Case File 1517903
As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Accordingly, on the basis of the evidence before it, the Tribunal finds that the Minister has not approved the nomination to which the applicant’s visa application relates. Therefore, the Tribunal finds that the applicant does not meet the requirements of subclause 186.233(3) and, consequently, clause 186.233 at the time of decision.
The Tribunal has also considered whether the applicant might meet the criteria for a subclass 186 visa in either the Temporary Residence Transition stream or the Agreement stream.
Clause 186.223 applies to applicants seeking a subclass 186 visa in the Temporary Residence Transition stream. Subclause 186.223(2) requires that the Minister has approved a nomination for the purposes of the Temporary Residence Transition Stream at the time of decision. However, there is little in the evidence before the Tribunal to indicate that this is the case at the time of decision.
As a result, the Tribunal finds that the applicant does not meet the requirements of subclause 186.223(2) and clause 187.223 under the Temporary Residence Transition Stream at the time of its decision.
Clause 186.242 applies to applicants seeking a subclass 186 visa in the Agreement stream. Paragraph 186.242(1)(a) requires the position to which the application relates to be a position nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party.
As discussed further below, there is little in the evidence to indicate that the Cambodian Welfare and Culture Centre WA Inc has entered into a labour agreement that is in effect at the time of decision.
Consequently, and on the basis of the evidence before it, the Tribunal also finds that the applicant does not meet the requirements of paragraph 186.242(1)(a), subclause 186.242(1) and clause 186.242 under the Agreement stream at the time of its decision.
Accordingly, given the above findings, the Tribunal finds that the applicant does not meet the requirements in the Direct Entry stream, the Temporary Residence Transition Stream, or the Agreement Stream at the time of decision, and the visa application must fail.
Other Matters
As noted previously, the applicant originally lodged his visa application in the Direct Entry stream. However, at the hearing the applicant’s representative requested that the Tribunal adjourn the review for a period of two months having regard to the background to the application for review.
Specifically, the representative noted that the Tribunal in AAT Case File 1517903 did not discuss which of the three streams or pathways available to the Association (Direct Entry, Temporary Residence Transition or Labour Agreement streams) would have been more appropriate for the visa applicant and his nominator, the Cambodian Welfare and Culture Centre WA Inc, to pursue in circumstances where the Association was seeking to nominate a Buddhist monk as a ‘Minister of Religion’.
The representative also informed the Tribunal that he had been engaged to assist the parties to negotiate a Labour Agreement with the Department. He explained that there had been a delay in the ability of the Association to lodge a new nomination in the Labour Agreement stream following the resignation of its president and, consequently, this organisation was in a state of transition. The representative further observed that the changes the Commonwealth government introduced in April 2017 to the 457 visa program had resulted in an increased number of Labour Agreement applications to the Department. In turn, this had lengthened processing times for such applications.
In addition, whilst the representative accepted that the Tribunal was bound by the the Full Federal Court decision in Singh’s case, he argued that the applicant wished amend his visa application under section 105 of the Act. The representative explained that this would be on the basis that the applicant had provided incorrect information in his visa application form when he stated that he was applying in the Direct Entry stream, and that the correct information was that he was seeking to apply for the subclass 186 visa in the Labour Agreement Stream.
Accordingly, the representative submitted that by adjourning the review the Tribunal would effectively allow the Cambodian Welfare and Culture Centre WA Inc. additional time in which to negotiate and lodge a nomination application in the Labour Agreement stream with the Department. In addition, this would facilitate the applicant taking steps to correct his visa application under section 105 of the Act, thereby avoiding the need for him to leave Australia to lodge a visa application.
The representative also argued that it was in the public interest to allow the applicant to remain in Australia, given that he was the head monk of the Cambodian Welfare and Culture Centre WA Inc.
Accordingly, the evidence and submissions regarding these matters are considered as follows:
(a)The Tribunal Discretion to Adjourn the Review:
The Tribunal notes that under paragraph 363(1)(b) of the Act it has discretion to adjourn the review from time to time. In considering whether to exercise this discretion in the applicant’s favour the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[10] and Manna v Minister for Immigration and Citizenship[11] where the Courts have held that it is not required to indefinitely defer its decision-making processes.
[10] [2002] FCA 617
[11] [2012] FMCA 28
The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li[12] regarding the reasonableness of any request for an adjournment, as well as the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[13] which also considered this issue.
[12] [2013] HCA 18 (8 May 2013)
[13] [2014] FCAFC 1 (4 February 2014)
Accordingly, on 28 August 2017 the Tribunal considered whether it would be appropriate for it to exercise this discretion in the applicant’s favour having regard to the following matters.
Specifically, the Tribunal observed at the hearing that it was bound by the Full Federal Court decision in Singh’s case. In particular, the Tribunal noted that, as at 28 August 2017, the Cambodian Welfare and Culture Centre WA Inc. had not lodged a Labour Agreement nomination application with the Department. The Tribunal also noted that the lateness of the representative’s submissions regarding the request to adjourn the review, including his contentions about the decision in AAT Case File 1517903, meant that it had had little time to consider the relevance of that decision to the current application for review, including the request to adjourn the review.
In addition, given the issues regarding the application for review before it, the Tribunal indicated that it was unlikely to agree to adjourn the review for a period of two months, as requested.
The applicant’s representative responded by requesting that the Tribunal adjourn the review for a period of 28 days to allow the Cambodian Welfare and Culture Centre WA Inc time in which to lodge the Labour Agreement application with the Department, and to also lodge further submissions and evidence in support of the application for review.
Accordingly, as the Tribunal had interstate work commitments in the week commencing 25 September 2017, it agreed to adjourn the review until 3 October 2017 for this purpose. Importantly, the representative stated at the Tribunal hearing that if the Cambodian Welfare and Culture Centre WA Inc had not lodged a Labour Agreement with the Department by this date, the Tribunal could proceed to make a decision on the basis of the evidence before it.
On 3 October 2017 the Tribunal received correspondence from the applicant stating the following:
…
During the hearing we requested for extension of time from the Member to provide further documents and comments and the Member kindly gave us extra time till 3rd October 2017.
Unfortunately we are unable to provide further support of the monk, Mr Oeun Sam's review application at this stage.
We wish to let you know that due to the changeover of the Association's president, the requisite information for a labour agreement was unable to be gathered within the Tribunal's timeframe. We anticipate that with the new appointment of Mr Sarak SOM as president, the necessary information can be gathered and an application lodged so that the visa application can be granted on the basis of a labour agreement.
We apologise for this and hope the Tribunal will grant us an extension of time till 17 October 2017.[14]
[14] T1, f.34-35
As a result, the Tribunal also considered at the date of this request, and at the time of its decision, whether to exercise its discretion under paragraph 363(1)(b) of the Act in the applicant’s favour having regard to the above case law, the history of this matter and the evidence before it.
Accordingly, on 5 October 2017 the Tribunal responded to this request in the following terms:
The Tribunal refers to your correspondence (dated 1 October 2017) emailed to the Tribunal on 3 October 2017 requesting an extension of time. This was on the basis that the Cambodian Welfare and Cultural Centre of WA Inc. has not been able to lodge an application for approval of a labour agreement with the Department by 3 October 2017, as agreed at the Tribunal hearing.
As discussed at the hearing on 28 August 2017, given the advice you have provided regarding the labour agreement application, the Tribunal has decided to decline your request for an extension of time.
Accordingly, the Tribunal will now proceed to a decision based on the issues and evidence before it.[15]
[15] T1, f.36-38
Specifically, the Tribunal refused the applicant’s request for an extension of time for the following reasons.
The Tribunal notes that in this case the applicant provided a copy of the primary decision record relating to the refusal of his subclass 186 visa application with the application for review he lodged on 16 February 2017. The applicant also confirmed at the hearing that on 8 December 2016 the Department had refused the nomination application lodged by the Cambodian Welfare and Culture Centre WA Inc, and which was linked to his visa application, on 8 December 2016. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of his subclass 186 visa for approximately 8 months at the time of decision.
In considering its discretion the Tribunal has also taken into account the representative’s submissions regarding the negotiations between the Cambodian Welfare and Culture Centre WA Inc and the Department in respect of a Labour Agreement for the purposes of clause 186.242 in the Labour Agreement. In the Tribunal’s view, there are several issues with this submission that detracts from the exercise of its discretion under paragraph 363(1)(b) of the Act in the applicant’s favour.
Firstly, clause 186.242 applies to applicants seeking a subclass 186 visa in the Agreement stream. Paragraph 186.242(1)(a) requires the position to which the application relates to be a position nominated by an employer in accordance with a labour agreement that is in effect and to which the employer is a party.
However, as set out in the representative’s correspondence dated 1 October 2017, the Cambodian Welfare and Culture Centre WA Inc has not lodged an application with the Department for this purpose, let alone had it approved.
Secondly, the Tribunal considers the representative’s legal argument regarding the amendment of the applicant’s visa application under section 105 of the Act to be misconceived.
The premise to this submission is that it is permissible for an applicant to change the visa stream he had nominated in his visa application by relying on section 105 of the Act at a later date, even after the delegate has proceeded to refuse the visa application.
The Tribunal notes that there is currently no judicial authority specifically addressing the relationship between section 105 of the Act and an applicant’s capacity to change post-lodgement the visa stream selected in their online application.
However, in an analogous context, the Courts have held that an applicant is not permitted to change their nominated occupation after they have lodged the visa application and during its processing.[16]
[16] See: Patel v Minister for Immigration and Citizenship [2011] FCA 1220 at [53]-[61]; Chen v Minister for Immigration and Citizenship [2011] FMCA 859 at [44]
The Tribunal has therefore considered the representative’s submission from the perspective of the applicant seeking to invoke section 105 of the Act in order to correct a mistake in his visa application form about the relevant visa stream.
The Tribunal notes that there are several cases in which applicants have analogously alleged they had mistakenly nominated the wrong occupation[17] in their visa application forms. Notably, despite making such claims, in each of these cases the Tribunal did not accept at a factual level that the occupation the applicant had nominated in their visa application form was incorrect at the time of application.
[17] See: Patel v Minister for Immigration and Citizenship [2011] FMCA 399 upheld on appeal in Patel v Minister for Immigration and Citizenship [2011] FCA 1220; Chen v Minister for Immigration and Citizenship [2011] FMCA 859; Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874; and KC v Minister for Immigration [2013] FCCA 296.
For example, in Patel v Minister for Immigration and Citizenship[18] (‘Patel’s case’) the Tribunal (differently constituted) found that the applicant had deliberately nominated the occupation of ‘family counsellor’ in his application form. It did not accept that the applicant had intended to nominate the occupation of ‘Computing Professional – NEC’. Instead, the Tribunal found that the applicant had sought to change his nominated occupation after lodging his application, and this finding was not challenged on appeal.[19]
[18] [2011] FMCA 399
[19] [2011] FMCA 399 at [14]-[15]
Similarly, in Shafiuzzaman v Minister for Immigration and Citizenship[20] (‘Shafiuzzaman’s case ‘) the Tribunal (differently constituted) did not accept that the applicant had mistakenly selected a ‘Baker’ rather than ‘Pastry Cook’ as his occupation. This was because the Tribunal found that the applicant had only decided to change his nominated occupation at a later date.[21]
[20] [2011] FMCA 874
[21] [2011] FMCA 874 at [79] and [82]
Correspondingly, in Chen, v Minister for Immigration and Citizenship[22] (‘Chen’s case’) the Tribunal (differently constituted) found that the applicant had selected ‘Chef’, rather than ‘Cook’ as his nominated occupation. It accepted that this had occurred because the applicant failed to appreciate the difference between these two occupations due to his limited English language skills and lack of assistance in completing the application. Nevertheless, the Tribunal found that the applicant had deliberately chosen the occupation of ‘Chef’, even though it recognised that, with the benefit of hindsight, the applicant would have completed the form differently and selected the occupation of ‘Cook’. The Court held that, in these circumstances, it was not open to the applicant to subsequently change his nominated occupation.
[22] [2011] FMCA 859
The Tribunal further notes that the Court’s obiter comments in Chen suggest that where an applicant makes a mistake regarding their nominated occupation, the only option is to make another application because “there is no mechanism within the Act to amend an application once it has progressed” beyond the lodgment stage.[23]
[23] [2011] FMCA 859 at [58]
Notably, in KC, v Minister for Immigration[24] (‘KC’s case’) the Tribunal (differently constituted) found that the applicant had not made a mistake when he selected ‘Community Worker’ as his nominated occupation. Instead, the Tribunal found that the applicant had changed his mind after lodgement and wanted to substitute the occupation of ‘Welfare Worker’ for the purposes of his visa application.[25] On judicial review, Cameron J observed:
The Tribunal in this case expressed the view that it was not possible to change a nominated occupation after a valid visa application had been made and cited in support of that proposition the decision of Lloyd-Jones FM in Chen v Minister for Immigration & Citizenship [2011] FMCA 859 at [58]. However, his Honour appears not to have been taken to s.105 of the Act, which requires visa applicants to correct incorrect answers given in visa application forms and which would appear to be the statutory basis for form 1023, two of which documents the applicant lodged prior to the commencement of these proceedings. In Patel’s case, Robertson J left open the possibility that an erroneous occupation nomination could be corrected pursuant to s.105. To determine this case it is not necessary to express disagreement with the relevant conclusion of Lloyd-Jones FM in Chen’s case but I do observe that it does not appear to sit well with Robertson J’s obiter comments in Patel’s case.
It is not necessary to give detailed consideration to s.105 and its possible operation to permit correction of a mistaken occupation nomination because the Tribunal found as a fact that the applicant did not make a mistaken occupation nomination but, rather, changed his mind about which occupation he wanted to nominate. That finding was open to the Tribunal although, given the nature of the occupational assessment which he had undertaken, the position advocated by the applicant, both at the Tribunal and before this Court, would appear to have been at least as open.[26]
[24] [2013] FCCA 296
[25] [2013] FCCA 296 at [13] & [17]
[26] [2013] FCCA 296 at [16]-[17]
In the present case, the Tribunal is satisfied that the evidence points to the applicant having deliberately chosen the Direct Entry stream. This view is reinforced by the fact that the associated nomination lodged by the Cambodian Welfare and Culture Centre WA Inc, and which was linked to the applicant’s visa application, was lodged in that stream.[27] In particular, given the manner in which events have unfolded in this case, the Tribunal is satisfied that this is a case where the applicant did not make a mistake when he nominated the Direct Entry stream in the visa application he lodged on 18 October 2016.
[27] See AAT Case File 1517903 cited by the applicant’s representative
The Tribunal accepts that the applicant and the Cambodian Welfare and Culture Centre WA Inc have since December 2016 and February 2017 respectively received advice from the applicant’s current representative that the Labour Agreement stream is more appropriate to their respective circumstances.
However, the Tribunal is not satisfied that this points to the applicant having made an error that is the focus of section 105 of the Act. In the Tribunal’s view, there is little in the evidence to suggest that the applicant made an administrative error when he nominated the Direct Entry stream in his visa application, in circumstances where he always intended to nominate the Labour Agreement stream. Rather, this is a case where the applicant has, with the benefit of hindsight and further advice, decided that he should have completed his visa application form differently in October 2016 by selecting the ‘Labour Agreement’ stream instead.
As the Cambodian Welfare and Culture Centre WA Inc had not lodged a nomination application in the Labour Agreement stream prior to 18 October 2016, and is yet to do so in October 2017, the Tribunal is not persuaded that, like the applicants in the cases of Patel, Shafiuzzaman, Chen and KC, it is now open to the applicant to subsequently change his nominated visa stream.
Therefore, given this, after taking into account the submissions regarding the practical issues facing the Cambodian Welfare and Culture Centre WA Inc in terms of its president, together with the wording and operation of section 105 of the Act and the available case law, the Tribunal does not consider it appropriate to adjourn the review so that the applicant can pursue the course that his representative has suggested under section 105 of the Act.
The Tribunal acknowledges (notwithstanding the limited nature of the evidence before it) that the circumstances surrounding the transitional circumstances affecting the Cambodian Welfare and Culture Centre WA Inc. have legal implications for the applicant’s ongoing immigration status. It also recognises the difficulties this presents to the members of this Association, given that the applicant is its head monk and central to the services it provides to its members in Western Australia.
Notwithstanding, the Tribunal has also had regard to the decision in Ghori v Minister for Immigration and Citizenship[28], where Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process”.
[28] [2011] FCA 759 at [22]
In the present matter, the Tribunal acknowledges that the applicant has not repeatedly applied for extensions of time. On the other hand, the evidence as a whole, including the applicant’s oral testimony at the hearing and the written submission provided to the Tribunal on 3 October 2017, confirm that he does not have an approved nomination from the Cambodian Welfare and Culture Centre WA Inc. in place at the time of decision. The Tribunal also notes that the purpose of the review process is not directed at facilitating the ability of an applicant to remain in Australia to pursue alternative migration avenues to achieve permanent residence in Australia.
Therefore, and in these circumstances, the Tribunal considers the sentiment expressed by Perram J in Ghori’s case to have some relevance to the exercise of its discretion to adjourn under paragraph 363(1)(b) of the Act.
Accordingly, in circumstances where the applicant lodged his application in the Direct Entry stream, the Tribunal is not satisfied that it is appropriate to adjourn the review to allow his nominating employer, the Cambodian Welfare and Culture Centre WA Inc to await the successful approval of a Labour Agreement application that is yet to be lodged with the Department.
The Tribunal notes that even if it adjourned the review until 17 October 201, as requested by the applicant’s representative to facilitate such an application by this Association, there is no certainty regarding the outcome of any such application before the Department. Further, given the representative’s submission that the volume of applications before the Department regarding Labour Agreement applications has grown since April 2017 and affected processing times, the Tribunal can only speculate when any such application might be finalised by the Department.
As a result, and for the above reasons, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review in the particular circumstances of this case.
Therefore, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.
(b)Ministerial Intervention under Section 351 of the Act:
At the Tribunal hearing the applicant’s representative also submitted that there was a public interest in referring this case to the Minister because the applicant is the head monk at the Cambodian Welfare and Culture Centre WA Inc. In particular, the representative advised that the Association provides services to Australian citizens / permanent residents who belong to the Buddhist faith as well as the Australian Cambodian, Sri Lankan, Myanmar and other communities in Western Australia.
Accordingly, the Tribunal has considered whether the circumstances the applicant has put forward would warrant referral to the Minister under section 351 of the Act. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.
As indicated to the applicant and his representative at the hearing, the Tribunal takes the issue of recommending the referral of any matter to the Minister seriously and, generally requires fairly persuasive evidence to refer a case to the Minister under section 351 of the Act. This is because the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted because this would align with Australian community expectations.
Consequently, this also means that it is important to recognise that not every case is appropriate for referral, even where it may give rise to feelings of sympathy for the individuals concerned, as is the case here. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia.
In considering whether to refer this particular case to the Minister, the Tribunal has had regard to the ‘Minister’s Guidelines on Ministerial Powers’. It notes that what is in the public interest is a matter for the Minister to determine. This will depend on various factors, which must be assessed by reference to the circumstances of the particular case.
In this case, the applicant presented to the Tribunal as a reasonably articulate and personable individual, and frank and credible witness. The Tribunal also acknowledges that, on the limited evidence before it, the applicant’s role as head monk at the Cambodian Welfare and Culture Centre WA Inc has the potential to contribute to the Australian community.
On the other hand, although the Tribunal indicated to the applicant’s representative at the hearing on 28 August 2017 that it would need evidence of compelling or compassionate circumstances before it would refer the matter to the Minister under section 351 of the Act, the representative provided little in the way of additional material to support such a referral. This was in circumstances where the Tribunal had agreed to adjourn the review until 3 October 2017, in part, to facilitate the parties’ abilities to do so.
The Tribunal further notes that the wording of clause 186.233, which is reinforced by the Full Federal Court judgment in Singh’s case, is an intended consequence of the legislation, and the applicant’s representative accepted at the hearing that the Tribunal was bound by the this decision.
As a consequence, the Tribunal recognises that whilst there may be scope to argue that Australia stands to receive a cultural or other benefit from permitting the applicant to remain permanently, the limitations of the evidence currently before it are not sufficient to establish a case that warrants referral to the Minister.
Accordingly, on the basis of the evidence that has been submitted to it, and for the reasons set out in this decision record, the Tribunal has decided not to refer the matter to the Minister under section 351 of the Act.
Nevertheless, the Tribunal notes that the applicant can still make a request directly to the Minister with additional evidence to support his claims for Ministerial intervention under section 351 of the Act.
CONCLUSION
Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.
Danica Buljan
Member
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