Sekhon (Migration)

[2020] AATA 1609

Sekhon (Migration) [2020] AATA 1609 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh Sekhon
Mrs Manvir Kaur

CASE NUMBER:  1732758

DIBP REFERENCE(S):  BCC2016/2927771

MEMBER:De-Anne Kelly

DATE:20 February 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal confirms the decision to dismiss the application.

Statement made on 20 February 2020 at 1:49pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – dismissal decision – failure to attend Tribunal hearing – extension of time granted – reasonable opportunity to appear – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 359, 362B, 362C, 379
Migration Regulations 1994, Schedule 2 cl 186.223

CASES

Singh v Minister for Home Affairs [2019] FCA 723
Sullivan v Department of Transport (1978) 1 ALD 383

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 5 December 2017 to refuse to grant the visa applicants  Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (the Act).

2. The review applicants, Mr Amandeep Singh Sekhon and Mrs Manvir Kaur were invited on 5 December 2019 under s.359A of the Migration Act 1958 to comment on or respond to information that may, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal advised that they had not made up their mind about the information. The particulars of the information were;

   ·On 3 September 2016, they had applied for an Employer Nomination (Permanent) visa. On their application form, under the heading “nomination details”, they referred to an employer nomination lodged by Om Mahalaxmii Pty Ltd.

   ·On 30 October 2017, the employer nomination lodged by Om Mahalaxmii Pty Ltd was refused by a delegate of the (then titled) Minister for Immigration and Border Protection. An application for review this nomination refusal was lodged with the Tribunal.

   ·On 13 August 2019 the Tribunal accepted a withdrawal of the employer nomination refusal application for review by Om Mahalaxmii Pty Ltd.

3. The Tribunal advised that the information was relevant to the review because one of the criteria that must be met for grant of an employer nomination (permanent) visa, is cl.186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the nomination referred to in cl.186.223(1) must be approved. Since the application for review in regard to the refused employer nomination was withdrawn by Om Mahalaxmii Pty Ltd, the decision made by the delegate of the Minister for Immigration and Border Protection stands. Therefore, the employer nomination is not approved. The applicants were invited to respond by 19 December, 2019 or they could request an extension of time but the request had to be received before 19 December, 2019.

4. On the 19 December 2019, the applicants requested an extension of time on the basis that their migration agent could not see them until the 6 January 2020. An extension of time was granted to the 10 January 2020. On the 10 January 2020, a response was received advising that the applicants’ wife was expecting a child and asking the Tribunal to update their records. However this response did not address the fact that there was no approved employer nomination to satisfy cl.186.223(2) which provides as follows;

   (2) The Minister has approved the nomination.

5. The Tribunal considered this a response and on 15 January 2020 invited the review applicants Mr Amandeep Singh Sekhon and Mrs Manvir Kaur under s.360 of the Migration Act 1958 to appear before the Tribunal at 9.30 am on 4 February 2020 as one of several applicants to be heard in the next two hours. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. On the 16 January 2020 the applicant emailed the Tribunal asking for the hearing to be postponed as his wife was due to give birth on 1 February 2020. The Tribunal considered carefully the request but declined on the basis that the information provided did not display evidence that the applicant personally was unable to attend the hearing. A form ‘Response to Hearing invitation’ was filled out indicating that Mr Amandeep Singh Sekhon was attending the hearing and emailed to the Tribunal on the 24 January 2020.

6. The Tribunal also sent SMS reminders about the hearing on the 28 January and 3 February 2020 or five business days and one business day before the scheduled hearing. The mobile phone number to which the SMS text messages were sent was the same number submitted by  the applicant with the review application.

7. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.

8. The Tribunal noted the remarks of the Judge in Singh v Minister for Home Affairs [2019] FCA 723 at [20] as follows: ‘The Tribunal has provided a reasonable opportunity for the review applicant to be heard before the Tribunal – or the requirement to act in a way that is “fair and just” (s 357A(3) of the Migration Act) or the opportunity to appear and “give evidence and present arguments” (S360(1) of the Migration Act)) – does not impose on the Tribunal “the impossible task of ensuring that a party takes the best advantage of the opportunity”: cf. Sullivan v Department of Transport (1978) 1 ALD 383 at 403 per Deane J (Fisher J agreeing) (“Sullivan”).’

9. The Tribunal considers a reasonable opportunity has been provided for the review applicants Mr Amandeep Singh Sekhon and Mrs Manvir Kaur to be heard before the Tribunal.

10. No satisfactory reason for the non-appearance has been given.

11. On 5 February 2020 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the review applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

12. The review applicants were notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The review applicants were advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

13. As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.

    DECISION

14. The Tribunal confirms the decision to dismiss the application.

    De-Anne Kelly
    Member