Santos Mendonca (Migration)

[2020] AATA 3024

Santos Mendonca (Migration) [2020] AATA 3024 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tatiane Santos Mendonca

CASE NUMBER:  1913661

HOME AFFAIRS REFERENCE(S):          BCC2018/928708

MEMBER:Alan McMurran

DATE:7 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.233 of Schedule 2 to the Regulations;

Statement made on 07 May 2020 at 2:50pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry Stream – child care worker – application submitted incorrect TRN – departmental request for new application – no case law for rectification of error in application – nomination with correct TRN approved – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 30 May 2019 for review of a decision made on 10 May 2019 by a delegate of the Minister for Home Affairs, to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of the Federal Republic of Brazil, applied for the visa on 27 February 2018. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Child Care Worker.

   Background

5. On 10 April 2019, the Department sent a natural justice letter to the applicant containing information for response as follows:

   “This visa application was linked to an entirely unrelated nomination application when it was lodged: that of YMCA OF THE NORTHERN TERRITORY LTD for AZENHA DE OLIVEIRA, Juliana (22/06/1991,F) (RID: 25609407). Therefore, even though Tatiane's nomination (RID: 1420610430) has been approved, her visa application is unable to be assessed further. Therefore, the visa applicant SANTOS MENDONCA, Tatiane (21/12/1987,F) has the option of withdrawing this visa application and lodging a new visa application to be linked to the correct nomination.”

6. On 10 April 2019, the applicant’s representative responded to the Department as follows:

   “Dear Case Officer,
   We have now updated the system with a form for incorrect answers. As this was a typing error we submit that it should be treated as incorrect information, we note that all other information provided supports the correct nomination however the reference number submitted was only incorrect. This should be treated as an incorrect answer to a question. Thank you for your care and consideration on this matter.”

7. The applicant simultaneously lodged a Form 1023 to correct the error. The Form explained the error thus:

   “In the beginning of the application the incorrect TRN was provided as follows:
   Incorrect TRN EGOH205AMQ
   The correct TRN that should have been provided is:
   Correct TRN EGOHF4VAS2
   Typing error by migration agent, we note all documents submitted support the correct TRN, including the work experience, employment contract and references: the only incorrect information was the TRN, this is was not a assessed mistake or intentional, this was a staff who types the wrong TRN.”[sic]

8. On 11 April 2019, the representative wrote to the Department with a request as follows:

   “I hope we can accept this change of information, as the applicant doesn’t have 3 years experience she can not withdraw and relodge as the new 187 requirements require 3 years experience (Changed 18 March 2018). This would have catastrophic effects on the applicants life and the childcare she is working at if it’s refused.”

9. On 12 April 2019, representative wrote again requesting:

   “This issue we have with this case is that the new 187 laws require 3 years experience (this was not a requirement before). As my client was working whilst studying this has only reached 1 year post qualification experience. I could not find any transitional law as the nomination was lodged before the changes in March 2018 if we can lodge the visa under the previous law?

   We therefore request you use your discretion to accept the incorrect answers form as this was a typing error only. Please let me know if you can accept our request or if you have any insight to provide on the withdraw/relodge predicament?”

10. On 10 May 2019, the delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, because the nomination application was linked by its TRN[1] to an entirely different nominator and nominee. The delegate’s decision says in part:

    “When the main applicant lodged her visa application, it was linked to a nomination
    application for an entirely different nominator and nominee. The visa applicant is SANTOS MENDONCA, Tatiane (21/12/1987,F) and she is employed by and nominated by ENFANT DE TERRE PTY LTD. However, the nomination application which her visa application is linked to shows YMCA OF THE NORTHERN TERRITORY LTD as the nominator and AZENHA DE OLIVEIRA, Juliana (22/06/1991,F) as the nominee.
    A natural justice letter was sent to the visa applicant advising that even though her
    nomination (RID: 1420610430) had been approved, her visa application was unable to be assessed further. She had the option of withdrawing this visa application and lodging a new visa application to be linked to the correct nomination. However, the registered migration agent representing the visa applicant responded by stating that they had provided a form for incorrect answers and that “ as this was a typing error we submit that it should be treated as incorrect information” and “ should be treated as an incorrect answer to a question”.
    

    [1] Transaction Reference Number

    In these circumstances, the department is not able to simply treat this occurrence as a typing error and an incorrect answer to a question on the application form. As the visa application has been linked to an entirely different nominator and nominee”.

11. The delegate found that it was not possible to “link” this visa application to another nomination, notwithstanding the admitted error in transcription of the TRN. The offered solution from the Department, in accordance with its policy, was for a further application to be lodged. As indicated in the agent’s response, this was no longer possible because of a change in the law.

    The Authorities

12. Department policy, which serves as a guide only and is not the law, is based on a strict reading of the Regulations to the effect that nowhere in the Regulations is it stated that it is permissible to link one visa application to a different nomination application after lodgement. Quite logically, the TRN is used to define the nature of the application as lodged, and accompanying information in support of the application as lodged ,and which is why, if the information is incorrect, a further application must be lodged.[2] The objective is to prevent an application relying upon specific information to be used for a different nominated occupation, changed after lodgement. Nominators, nominees, and occupations are not interchangeable.

    [2] see for example Patel v MIAC (2011) 198 FCR 62(Nicholls FM); Chen v MIAC [2011] FMCA 859 (Lloyd-Jones FM, 8 November 2011)

13. There appears to be no clear answer in case law to the question, however, whether an acknowledged mistake in the nominated occupation, or for that matter the nominee (for example a name misspelled), can be rectified. There is no authority which says such a mistake can never be rectified, or that a new application must be filed in every instance. An example where correction might be accepted is provided, where the mistake may be shown to be merely typographical or inadvertent.[3] This is to be distinguished where the application is “changed” after lodgement, due to some other circumstance (e.g. change of heart, nomination change, factual anomaly).

    [3] see Pavuluri v MIBP [2014] FCA 502 (Mortimer J)

14. Any distinction between a “changed” application, which cannot be corrected, and an applicant’s “mistake” which might be, depends upon factual findings and the contextual circumstances, and the explanation provided. The Tribunal is of the view that those facts as submitted must lead inevitably to the view that the nomination and occupation intended (but not stated), once promptly explained and corrected, was logically the nomination and application which should be processed. In this Tribunal’s view, taking such an approach is not inconsistent with preserving the integrity of the visa program, and which may apply in only a small number of cases, and which in an instance such as this can lead to an irreversible outcome.

    Tribunal application

15. On 5 May 2020, the agent asked the Tribunal to deal with the application on a priority basis. The recent submission says in part: “This was our mistake and now our client is suffering dearly, she works for a childcare and if she is not granted 187 soon she may lose the job as they childcare may not be eligible for the Job Seeker payment for her.”

16. The Tribunal has considered all the available information from both the Department of Home Affairs[4] and on the Tribunal’s file. The Tribunal has agreed to give the matter some priority based on that information, and without further requests or responses being sought from the applicant. Considering the information available, the Tribunal has determined it can decide the review without proceeding to a hearing.[5]

    [4] file BCC2018928708

    [5] section 360 (2)

17. The applicant was represented in relation to the review by her registered migration agent.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is twofold, firstly whether the applicant has in fact made a mistake or innocent error, and secondly, whether the error can be corrected, and the application processed based on the information provided and related to the corrected TRN.

    Findings

20. In the present circumstances, the Tribunal makes the following findings of fact:

    ·The applicant submitted the wrong TRN with the application (the “mistake”);

    ·the mistake was inadvertent and a typographical error;

    ·all information submitted with the application related to the nominated application for the occupation of Child Care Worker, referenced by a different TRN;

    ·the applicant attempted to rectify the mistake without prevarication, and lodged immediately a Form 1023;

    ·the Department did not accept the notification of change was due to “mistake”, capable of remedying the defect caused by a typographical error with the TRN;

    ·the nomination related to the visa application (using the corrected TRN) was approved by the Department, and all other information for the visa application was accepted and the criteria for the visa otherwise met;

21. The Tribunal also finds on the information that there is no contest that the error with the TRN was other than a genuine mistake and typographical. This appears to have been accepted also by the Department.

    Can this mistake be rectified?

22. Having regard to the competing authorities and opinions expressed, this Tribunal prefers the view that it may consider or examine other evidence [6], such as provided in this instance, to explain precisely which application nomination and occupation was intended to be specified and related to the visa application, and in order to determine whether it is possible to correct an incorrect answer lodged with the visa application.

    [6] see for example the reasoning (obiter) of Mortimer J in Pavuluri

23. Not to do so in this Tribunal’s view does not serve the overall objective of procedural fairness in dealing with such applications, and where the integrity of the process has not been threatened. The applicant’s representative has clearly admitted the clerical mistake, caused by human error, and well before the matter was decided.

24. Reading the application form as lodged, it is clear (as acknowledged by the Department) that there is no connection whatsoever between the nomination for this applicant, and another nomination concerning the YMCA of the Northern Territory. The facts lead inevitably to the conclusion of mistake caused by typographical error, and that the intended visa application was always for a child care worker as nominated by the nominating employer. To consider the application otherwise, leads to an outcome which is disproportionate for this applicant in terms of the nominated occupation (no longer being available to her), and for no other reason than human error, and for which she was not herself responsible.

25. The Tribunal further notes this reasoning aligns with the findings by another Tribunal Member on similar facts, and which anticipates consistency in the decision-making process.[7]

    [7]Quach (Migration) [2020] AATA750 (20 March 2020)

    Nomination of a position

26. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

27. 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.

28. On the available information, and for the reasons set out above, the Tribunal is satisfied that the person who will employ the applicant is the person who made the nomination using the corrected TRN.

29. The Tribunal is further satisfied that the Department has approved that nomination, and which has not subsequently been withdrawn. The Tribunal finds there is no adverse information known to Immigration (or the Tribunal) about the nominator (or the nominee) or any person associated with the applicant, and that as at 5 May 2020, the position remains available to the applicant. The Tribunal finds that the application is made no more than 6 months following the approval of the position nominated.

30. Therefore, cl.187.233 is met.

31. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.233 of Schedule 2 to the Regulations; and

    Alan McMurran
    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

    (aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.