Samuel (Migration)

[2020] AATA 3065

Samuel (Migration) [2020] AATA 3065 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Victor Moses Samuel

CASE NUMBER:  1721925

HOME AFFAIRS REFERENCE(S):          BCC2016/2954400

MEMBER:Wan Shum

DATE:5 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 5 June 2020 at 3:04pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Technical Sales Representative – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19

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 applicant a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 September 2016. 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.

3. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Technical Sales Representative (North Queensland). The related nomination was made by Quali & Quanti Investments Pty Ltd (the nominator) on 25 August 2016.

4. The nomination was refused on 1 August 2017.

5. As a consequence, the delegate refused to grant the visa finding that the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

6. Both the nominator and the applicant have sought review of the refusals and were represented in relation to the review by the same registered migration agent. Following the hearing, a different registered migration agent was appointed.

7. The applicant appeared before the Tribunal on 21 January 2020 by phone to give evidence and present arguments. The Tribunal also received oral evidence from Mr Veeralapally, the Director of Quali & Quanti Investments Pty Ltd, via telephone. The first representative assisted by telephone.

8. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the nomination made by Quali & Quanti Investments Pty Ltd (the nominator) has been approved. 

10. This requirement is set out in clause 187.233, which appears 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 the visa application, the applicant provided details of a related nomination, which is the nomination made by the nominator for the position of Technical Sales Representative (North Queensland). Under the question relevant to ENS/RSMS declarations, the applicant responded ‘Yes’ to the sentence: “[h]ave declared that the position to which the application relates is a position nominated under regulation 5.19 or in accordance with a labour agreement by providing details in this application of a nomination that has been lodged with the Department of Immigration and Border Protection”.

13. On 19 May 2020, the Tribunal affirmed the delegate’s decision not to approve the nomination.

14. The Tribunal then wrote to the applicant on 21 May 2020 regarding this information, which it had outlined during the hearing would be the course of action it would take if it affirmed the decision in relation to the nomination. In the invitation that was sent pursuant to s.359A of the Act, reference was made to the Tribunal’s decision to affirm the decision not to approve the nomination and the relevance of this information was that if there was no approved nomination in respect of the applicant, the Tribunal would find the applicant did not meet cl.187.233(3) and affirm the decision under review. A response was due on 4 June 2020. The Tribunal received an email from the applicant’s representative on 3 June 2020 at 5:15pm acknowledging that the nomination had been refused and, somewhat oddly, stated that “the applicant wishes to discuss this and give oral evidence at a hearing”.  

15. On 4 June 2020 at 11:22am, an officer of the Tribunal wrote to the applicant to inform him that it will not be holding a further hearing and that a response to the s.359A invitation was to be given in writing, as set out in the invitation.

16. The representative responded to that email at 11:54am on 4 June 2020 with the following:

    Dear Sir/Madam,

    Thank you for the email below.

    It is clear from your email that the AAT has already decided to affirm the decision under review without giving the applicant the opportunity to attend a hearing.

    This response is very unusual. Please advised under which section of the Migration Act 1958 you are using to deny the applicant the right to a hearing.

    Kind regards,

    Karl Konrad

    Managing Director

    Australian Immigration Law Services

17. This response appeared to ignore the fact that a hearing had already been held on 21 January 2020 in which the applicant had acknowledged that his visa was only refused because the nomination made by his employer had not been approved and the Tribunal had taken evidence from the applicant about his employment with the nominator. The Tribunal officer sent an email at 1.11pm and made reference to the hearing stating that the applicant had already participated and gave evidence by phone on 21 January 2020 and that a copy of hearing recording had been provided to the representative on 7 April 2020. It was repeated that the response to the s.359A invitation was to be in writing and added that there is no obligation to hold a further hearing in the circumstances.

18. The Tribunal received a further email from the representative at 3:03pm on 4 June 2020, stating:

    Dear Sir/Madam,

    We’ve already put in a complaint regarding apprehensive bias, in which an adequate response has not been received. Currently your instructions to us that our client does not deserve a hearing further supports this complaint. In the last hearing, there was nothing discussed with out client regarding the refusal of the nomination.

    Kind regards,

    Karl Konrad

    Managing Director

    Australian Immigration Law Services

19. The usual practice of the Tribunal in cases involving the review of a nomination and the related visa application is to invite both the nominator and the related visa applicant to a combined hearing. As explained on 21 January 2020 to the applicant, if the Tribunal approves the nomination, it would then proceed to remit the related visa matter to the Department who would continue to assess the remaining visa criteria. However, if the Tribunal did not approve the nomination, then it would write to the applicant to allow him or her to comment on or respond to the information, and then would proceed to make a decision after the period to respond had passed and that there would not be any further processing of the visa. A further hearing is not held in those circumstances as the issue of whether the nomination has or has not been, or rather will or will not be, approved is raised at the combined hearing. In the circumstances of this case, the Tribunal considers that the obligation to invite the applicant to a hearing and allow the applicant to give evidence and present arguments, has been discharged. In terms of the inadequate response to the allegation of bias referred to in the email sent by the representative at 3:03pm on 4 June 2020, it would appear to refer to the allegation contained in the response to the Tribunal’s s.359A invitation for the related nomination. Notwithstanding the view of the representative that it was not an adequate response, the Tribunal had addressed the allegation in its decision affirming the delegate’s decision not to approve the nomination.

20. The Tribunal did not respond to the last email received on 4 June 2020 as it had repeatedly advised that a further hearing would not be offered and that the response to the s.359A invitation should be in writing. The response was due by 4 June 2020. Other than the initial acknowledgment that the nomination had been refused, nothing further was received addressing the actual information set out in the 359A invitation. In any case, it does not appear based on the correspondence received that there is any dispute that the relevant nomination has not been approved. The Tribunal has thus proceeded to a decision in this case.

21. Given that the nomination has not been approved, the applicant does not meet cl.187.233(3). Therefore, cl.187.233 is not satisfied.

22. 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.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Wan Shum
    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.