Sigdel (Migration)

[2024] AATA 2094

Sigdel (Migration) [2024] AATA 2094 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajan Kanta Sigdel
Mrs Malati Adhikari Sigdel
Miss Aarati Sigdel
Mr Aditya Sigdel

REPRESENTATIVE:  Mr Hem Raj Bhatta

CASE NUMBER:  1910911

HOME AFFAIRS REFERENCE(S):          BCC2018/682552

MEMBER:Alan McMurran

DATE:11 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 11 June 2024 at 9:25am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Accountant – applicant ceased his employment as an accountant with the nominator – not the subject of an approved nomination – referral to the Minister refused – not sufficient evidence to demonstrate a strong case for unique and special circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.13, Schedule 2, cl 186.223

CASES
Minister for Immigration and Citizenship v Li (2013) 249CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 1 May 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are all members of the same family. The primary applicant, Mr Rajan Kanta Sigdel (“the applicant”), a citizen of Nepal, and the second to fourth-named applicants (“secondary applicants”), applied for the visas on 9 February 2018.

3. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. The other members of the family unit, the secondary applicants in this instance, need satisfy only the secondary criteria.

4. 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 Labour Agreement stream.

5. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant (General), ANZSCO 221111.

6. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because the Minister has not approved the nomination.

   Tribunal process

7. The applicants appeared before the Tribunal on 4 April 2024. The primary applicant appeared with his representative to give evidence and present arguments. The secondary applicants did not appear.

8. The Tribunal agreed to a request to adjourn the hearing.

9. On 27 May 2024, the hearing was resumed. The applicant again appeared in person, together with Mrs Malati Adhikari Sigdel, and the representative.

10. The applicants were represented in relation to the review by their solicitor.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

12. The applicant was nominated for the role of Accountant (General) by a registered corporation, Last Minute Grab Pty Ltd (“the nominator”).The nomination was refused by a Department decision made 14 March 2019.

13. The nominator sought review of that decision. The Tribunal completed its review on 6 August 2020 and affirmed the Department decision. [1]

    [1] Tribunal case 1907542

14. This related visa application for review has continued and has not been withdrawn. That is because the nominator filed an application in the Federal Circuit Court of Australia on 1 September 2020 appealing the nomination refusal[2] (“the appeal”).

    [2] FCC reference SYG2072/2020

15. The visa applicants are awaiting the outcome of the appeal in order to pursue their applications. The visa applicants have not appealed the visa refusals. Instead, they anticipate that if the appeal were successful the Tribunal will then remit their visa applications for further consideration. They have asked the Tribunal to defer the review process for the visas pending the outcome of the appeal.

16. The visa applicants have conceded that the visas cannot be granted where the nomination has not been approved and this review application has no prospects without a successful outcome of the appeal, hence, they have sought adjournment of the hearing process to await the outcome.

17. The applicant ceased his employment as an accountant with the nominator in 2019. He continues to work however in other employment. There is no indication that the applicant’s employment with the nominator is still available and he has no current employment agreement with the nominator since the employment ceased in 2019.

18. A check by the Tribunal of the appeal progress reveals a directions’ hearing was conducted on 24 September 2020 by the Court. Orders were made by consent on 23 December 2020. The orders required the applicant to file and serve an amended application. No other details concerning progress of the appeal are available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the position to which the application relates is the position subject to an approved nomination: [cl.186.223(2)].

20. The applicants have raised an issue whether the Tribunal should adjourn its review process pending the outcome of the appeal.

    Nomination of a position

21. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

22. In addition, this criterion also requires that:

    ·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 reg 1.13A and reg 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.

23. It is not contested in this review that the nominated position has not been approved by the Minister and cl 186.223 of Schedule 2 of the Regulations is not met.

24. It has also not been contested that the review cannot succeed were the appeal to fail and in circumstances where the Tribunal had agreed to await the outcome of the appeal.

    Tribunal Outcome

25. For the reasons which follow, the Tribunal finds that the review should not be adjourned for an indefinite period, pending the outcome of the appeal.

26. This leads to the result that the decision must be affirmed.

    Tribunal process - adjourned hearing - 4 April 2024

27. On 28 March 2024, the representative provided the Tribunal with detailed written submissions for an adjournment.

28. The submissions set out some background including the fact the visa applicants had not learnt of the decision in the Tribunal affirming the Department decision to refuse the nomination until 26 March 2024.

29. By way of further background, the Tribunal was informed that the director of the nominating company was also the visa applicants’ previous migration representative. The director, Mr Uprety, had employed the applicant. When the nomination was refused, the director had informed the applicant of the outcome, and told him the decision would be reviewed in the Tribunal. The applicant said the conversation he had with the director was shortly after the delegate had refused the decision on 20 April 2019.

30. The applicant said he has been waiting since April 2019 to hear of the nominator’s review outcome. He said he had not received any communication from the director and had been unsuccessful in attempts to contact him.

31. When the applicant received information of the Tribunal’s hearing for this visa review decision, he appointed his new representative, his solicitor, who notified the Tribunal of his appointment on 28 March 2024. The same day, the representative sought an adjournment.

32. The adjournment request was a lengthy submission and in summary, pointed out that:

    ·the applicant had only just become aware of the nomination decision being affirmed

    ·the applicant had heard nothing since 2019 from the nominator/director

    ·the applicant may have received “bad advice” for which he was not responsible, and that the previous representative had his migration registration cancelled and had shown “lack of professionalism” and “inaction”

    ·the applicant may have also been misled by “other parties”

    ·there was no disadvantage from a delay of up to 2 or 3 months to allow the applicant “to organise things”, given the administratively slow progress for review over 3 to 4 years

    ·the representative needed time to prepare for a hearing and had received only very short notice

    ·the new representative wanted to obtain counsel’s advice and assistance, including for provision of a subpoena for production of documents to the previous migration agent.

33. On 29 March 2024, the representative again requested the Tribunal consider an adjournment “for a couple of months”. A further written submission was provided. This submission added to the previous day’s submissions as follows:

    ·that the Tribunal should await the outcome of a nomination decision from the Federal Circuit Court, in the absence of any information about those proceedings

    ·time should be provided to consider prospects for the nomination decision on appeal, the applicant not being aware of the reasons for refusal and the grounds of appeal, and that the Tribunal exercise its discretion accordingly

    ·that it would be unreasonable within the bounds of “legal unreasonableness”, as emphasised in the decision in Minister for Immigration and Citizenship v Li (2013) 249CLR 332 at [76] and [85], not to grant an adjournment.

34. On 4 April 2024 at the hearing, the applicant confirmed he had not spoken with the director since 2019 and had effectively done nothing pending the outcome of the nomination review in the Tribunal. He said he had been told in 2019 he would be informed. He accepted what the director said because the director was also a migration agent. He agreed that he had known since May 2019 that his visa application was unsuccessful, but he had remained confident because the director told him the review would be pursued and he would be informed.

35. He said Mr Uprety had assured him the review had good prospects and would succeed and therefore the visas would also be approved. He said he also understood that the visas could not be approved unless the nomination was successful.

36. The representative agreed that he would provide the Tribunal with some further written submissions for consideration of the adjournment request following the hearing in order for the adjournment to continue for an extended period. He said he would use the time to gain further information about the nomination refusal and the appeal and so he could advise the applicant accordingly.

37. The Tribunal informed the representative it had a recent ASIC historical search which showed there was a strike of action in progress against the nominator. He was unaware of that position. The representative also submitted that he was considering a section 45AA conversion application, subject to advice from counsel. He also wanted an opportunity to speak with the solicitor now acting for the nominator.

38. At the end of the hearing, the Tribunal agreed to an adjournment and further directed the applicant to provide any further submissions by 18 April 2024, in order for the Tribunal to consider whether the lengthy adjournment proposed should be granted.

39. On 17 April 2024, the representative made further detailed submissions. The submissions included:

    ·that it was for the Member to decide whether a further adjournment pending the judicial review was warranted

    ·that the applicant has not had sufficient time to obtain advice and assistance and should have at least a further 2 to 3 months adjournment

    ·the applicant required more time to communicate with the nominator and his representative as no documents have been made available concerning the appeal or for consideration whether the appeal might succeed

    ·the subpoena question was not resolved and the applicant did not have access to documents or information held by the Department or the Tribunal about the nominator or the nominator’s proceedings

    ·the applicant is unable to comment on prospects for the judicial review outcome as the employer’s legal representative is not communicating and has informed the representative that the nominator’s lawyer “does not act for the company anymore”

    ·the applicant has no further documents in support of proposed investigations for advice purposes and cannot comment on “whether there is prospective of success” for the appeal; the submission notes that the company is not being struck off, in accordance with the most recent ASIC information as at 17 April 2024

    ·the applicant is still considering a section 45AA application.

    ·Finally, the applicant intends to make a Ministerial Intervention request and needs time to put that together. The submission included a short summary of the reasons for such request.

40. On conclusion of the submission, the applicant states he “will leave it to the Member to finally decision on what would be an outcome in this matter”. The Tribunal interprets this to mean the Tribunal deciding whether to continue the adjournment, or not, for the requested period of “2 or 3 months”.

    Resumed hearing - 27 May 2024

41. On 17 May 2024, having heard nothing further from the applicant, the Tribunal invited the applicant to a resumed hearing. The invitation informed the applicant that the hearing “will consider events to date, any developments and/or progress, and any additional submissions from the applicant, in particular, concerning the matters raised in the previous hearing and afterwards.”

42. At the resumed hearing, the applicant gave evidence that he was still looking for another accounting practice to employ him while currently working at Woolworths at Double Bay in Sydney.

43. He said since the hearing on 4 April 2024 he had followed up with ASIC to confirm the nominator had not been struck off. He said he has had no luck communicating with the director and the nominator has not shared any information with him. The applicant confirmed he had not been able to speak with Mr Uprety about the Judicial review.

44. The representative submitted that he had approached the nominator’s lawyer who had no instructions to provide any information and could not do so. The representative was not aware of any developments on the court application. He said the visa applicants are not proceeding with the section 45AA conversion application any further, nor any subpoena. He had not at this stage progressed with any information for the Ministerial Intervention request.

45. The Tribunal confirmed with the applicant his understanding that he was unable to meet the requirement of an approved nomination, that he had disclosed no other prospects for employment, and had no other visa applications underway. There was no information about any progress for the judicial review and that the Tribunal could not wait indefinitely for an outcome, and where there was no submission as to prospects of the appeal. Furthermore, the director was not cooperative and was not communicating with him about the appeal, or indeed about anything. The applicant accepted the Tribunal’s summary.

46. The Tribunal concluded the hearing on the basis that it did not appear any further lengthy adjournment was warranted, but the applicant could have a further period for submissions until 3 June 2024, for the Tribunal’s consideration.

47. The representative indicated he was also intending that the Tribunal would receive his submissions for Ministerial Intervention which it might consider supporting.

48. The Tribunal has waited until 11 June 2024, but has received no further submissions from the applicants.

    Findings

49. On the substantive issue whether there is an approved nomination, the Tribunal finds that the applicant is not the subject of a nomination which the Minister has approved.

50. Therefore, cl 186.223 is not met.

    Secondary applicants

51. The criteria for applicants who are members of the family unit of a person who satisfies the primary criteria are set out in paragraph 186.31 of schedule 2 to the Regulations.

52. Clause 186.311 requires that a secondary applicant is a member of the family unit where the primary applicant holds a Subclass 186 visa, and where the secondary applicant has made a combined application with the primary applicant.

53. As the primary applicant does not hold a subclass 186 visa granted on the basis of satisfying the primary criteria for the visa, the secondary applicants do not meet the criteria.

54. Accordingly, the secondary applicants do not meet cl 186.311.

    No adjournment

55. On the question as to whether the Tribunal should exercise its discretion to further adjourn its process under s 363 of the Act, which provides that the Tribunal may adjourn the review from time to time, the finding is as follows.

56. The Tribunal has considered the basis of the submissions made by the representative and the applicant whether this is an appropriate case for an indefinite adjournment, that is, an adjournment until the judicial review outcome is known.

57. On the limited information available, it appears the application before the Federal Circuit Court still has some time to run, and could be a further 1 or 2 years from resolution. Present indications are that the Court may be delayed for up to 5 years from the time of application.

58. Having listened carefully to the applicant’s submissions, there is little or no information that the appeal has reasonable prospects of success. The applicant himself is uncertain and the representative makes no submissions in that regard.

59. The Tribunal has endeavoured to take into account relevant factors for consideration upon an adjournment request. These include the history of the proceedings, whether the amount of the adjournment or extra time sought is reasonable, the reasons proposed by the applicant, and whether the adjournment is likely to produce further information likely to advance the applicant’s circumstances.

60. The decision in Li and related Court authority means for this Tribunal that the exercise of discretion in relation to the adjournment request should not be arbitrary and requires a decision which is reasonable and fair based on the surrounding circumstances.

61. The situation for the applicant has not improved since 2019 with no contact from the nominator, no employment with the nominator, and none apparently likely in the future. The applicant is left to look for engagement in his chosen occupation elsewhere. He has however not found another sponsor, no other application is underway, and the prospects of success of the judicial review appear remote, particularly where the nominee will not be employed by the nominator and has not been so employed since at least May 2019.

62. The Tribunal has a statutory obligation to carry out its functions by pursuing the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The applicant has had the benefit of legal representation, a substantial period since 2019 to resolve his personal circumstances, a further adjourned period since the Tribunal’s hearing invitation and the opportunity to make submissions.

1. Taking everything cumulatively into account and considering the information which has been made available by the applicant and the representative, the Tribunal finds this is not a case where a lengthy and indefinite adjournment is warranted, whether for a few months or in excess of a year.

2. The applicant has already had a significant period since the initial hearing on 4 April 2024, which is the period initially sought for the adjournment for “2 or 3 months”. There has been little or no change in the information available in that period and as at the time of this decision (11 June 2024).

3. The Tribunal therefore declines to grant the request for a further adjournment or extension of time until the outcome of the nominator’s Judicial review.

   Ministerial intervention request

4. The applicant is not prevented from making his own request direct to the Minister. The applicant has not provided for the Tribunal’s consideration further information to support such a request, notwithstanding the invitation to do so since the last hearing on 27 May 2024.

5. The applicant was invited to make further submissions by 3 June 2024. The Tribunal has waited until 11 June 2024, but nothing further has been forthcoming.

6. The applicants submissions made by the representative on 17 April 2024 concerning Ministerial Intervention make reference to “unique” and “different aspects” relevant to this particular applicant.

7. Those “aspects” are not identified or particularised.

8. The fact the applicant’s previous representative may not have acted professionally and about which the applicant complains are not matters about which the Tribunal can have regard, and are not “unique” factors. The applicant alone is responsible for dealing with his representative and for seeking advice.

9. Nor is the fact there may have been some administrative concerns over delays and inability to obtain information. There is no information before the Tribunal about the applicant’s family circumstances, other than the length of time spent in Australia and that the children have spent considerable time in Australia and one already has “permanent residency and possibly be citizen of Australia soon”. The representative submits that there has been no fault on the part of the applicant who may have been “manipulated and wrongly guided”.

10. It may certainly be a matter for the applicant to consider presenting a Ministerial intervention request, particularly because of factors concerning his family and their future, and the impact of having to return to Nepal. That is however a matter for the applicant to consider and on the available information before the Tribunal, there is not sufficient evidence to demonstrate a strong case for unique and special circumstances as outlined by the representative.

11. That is not to say however that the applicants, or any of them, should be discouraged from pursuing such application as they may be advised.

    Conclusion

12. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams.

13. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.