Singh (Migration)

[2022] AATA 2916

Singh (Migration) [2022] AATA 2916 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhjinder Singh

REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)

CASE NUMBER:  1905121

HOME AFFAIRS REFERENCE(S):          BCC2017/2185952

MEMBER:De-Anne Kelly

DATE:11 July 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 11 July 2022 at 5:05pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Café Manager – no approved nomination – request for Ministerial Intervention – impact of the employer – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 36, 65, 359, 360
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 Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 June 2017. 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 (Cth) (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 Café Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination by Downton Café Pty Ltd. was refused being the application referred to in cl 187.233(1).

6. The applicant appeared before the Tribunal on 24 June 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review by Mr Nigel Dobbie.

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

9. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

10. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies cl187.233(3) which provides as follows.

    (3) The Minister has approved the nomination.

Nomination of a position

1. 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.

2. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made 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 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.

3. The Tribunal advised the applicant under s359AA of the Act that following the refusal of the employer nomination by the Department, the employer had lodged a review application with the Tribunal however it had made a decision, on 23 May 2022, to affirm the refusal of the Employer nomination, by The Downtown Café Pty Ltd which had nominated him in an application for a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of Café Manager. It found the employer had accumulated tax losses for FY 2021 of $88,399 and the forecast profit for FY 2022 provided by the employer neglected to include an amount for wages and when these were included the forecast profit became a loss. The Tribunal found the employer did not have the financial capacity such that the employee will be employed on a full-time basis for at least two years and did not satisfy r.5.19(4)(d)(i). If the Tribunal gave consideration to this information, it may find that there was not an approved employer nomination to satisfy cl.187.233(3).

4. The applicant requested a brief adjournment which was granted. He then asked to make a submission within 14 days. The legal representative acknowledged that without the nomination being approved, the decision on the visa application must be affirmed. He made a Request for Ministerial Intervention. The visa applicant stated that he had been working for 8 and half years in Australia and working with the same person in a regional area and had worked 4 or 5 years in a regional area.

Request for the Tribunal to refer the case for Ministerial Intervention.

1. Following the hearing the applicant provided the following letters in support of a request for referral of the case for Ministerial Intervention.

   ·The Review applicant.

   ·The Major of the Western Downs.

   ·The President of the Chinchilla Chamber of Commerce & Industry Inc.

   ·A letter from Downtown Café (the employer).

   ·A letter from Murrays.

2. The letter from the visa applicant states that he has been working in Chinchilla since 2018 and has made sacrifices such as being separated from his partner who is living overseas. His work has helped another 13 locals to keep their jobs and drives casually for Murray’s Private as a coach driver. He asks the Tribunal to consider the impact on his life and on the community as well as the important contribution he has made to Chinchilla which he regards as this home.

3. The letter from the Major states their biggest challenge is finding employees in a regional area and describes the loss of the nominee to the business as “gut wrenching” and request a review of the decision to refuse the visa application for the applicant. The difficult of attracting employees is also highlighted in the letter from the President of the Chinchilla Chamber of Commerce & Industry.

4. The employer states that it is due to the visa applicants’ efforts that he has been able to keep the business running and saving all his employees job’s and this should be considered since without the visa applicant the business is going to be shut and their staff will lose their jobs.

5. The letter from Murray’s coaches’ states that the visa applicant has been working there for the past 8 weeks to 7 July 2022 and has worked 23.66 hours per week.

6. The Tribunal considered the Ministers Guidelines on Ministerial Intervention, “Cases that should be brought to my attention – 4. Unique and exceptional circumstances” and also the Presidents direction on Ministerial Intervention as well.

7. The Tribunal considered the Ministers “4. Unique and exceptional circumstances” as follows.

Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

a.strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

b.compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

c.exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.

d.circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

e.the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control.

f.a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.

g.the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

1. The letters in support and the submission by the legal representative of the visa applicant, who is a citizen of India, do not establish a case for him meeting (b), (c), (e, (f) or (g). The Tribunal finds that the visa applicant does not enliven (d) because unfortunately it is the intended consequence of the regulation that the Subclass 187 direct entry visa is dependent on the employer nomination being approved. The Tribunal finds that India is not a country that would satisfy (f) having no known human rights threats for its citizens.

2. The Tribunal has considered (a) and whether strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. In the original employer nomination application, the employer Mr Kumar stated that he employs 7 Australian citizens and that without the visa applicant he will have to close his business and his employees will lose their jobs. There is scant evidence that Mr Kumar is an Australian citizen or Australian permanent resident although he has made reference to his personal situation and medical condition so the Tribunal will consider whether Mr Kumar’s circumstances and that of his employees would enliven (a).

3. Mr Kumar states that the business will close without the visa applicant however the Tribunal found that the business which is a small café has very significant accumulated tax losses for FY 2021 and that the employer in presenting the forecast financial results for FY 2022 had neglected to include any amount to cover wages in the final quarter which caused it to be cautious about accepting Mr Kumar’s evidence.  Once wages were included in the calculations there was again a significant tax loss forecast for FY 2022.

4. Even taking COVID into account the business has tax losses from FY 2019 to forecast financial year 2022. Even with the visa applicant employed by the business, it has made significant tax losses and the Tribunal found it was not financially viable. The Tribunal considers that if the business is in a perilous state and may close it is not going to be due to the loss of the visa applicant but to many years of poor trading performance. In fact, saving the visa applicant’s wage may enable the business to show a profit and turn around its losses. It is noted that the visa applicant has been working for Murrays coaches for 8 weeks for 23.66 hours per week despite the employer Mr Kumar stating that they need him in the Café.

5. As such, the Tribunal cannot find that (a) is enlivened.

6. The Tribunal finds on the evidence before it that the visa applicant does not meet the above Ministers Guidelines and must decline to refer the case for Ministerial Intervention. It is noted however that the applicant can refer the case for Ministerial Intervention themselves if they believe they meet the guidelines for such a request.

7. The Tribunal finds that since it has affirmed the decision to refuse the employer nomination there is no approved employer nomination to satisfy cl.187.233(3).

8. Therefore cl.187.233(3) is not met.

9. Therefore, cl 187.233 is not met.

10. 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

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

   De-Anne Kelly
   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.