Singh (Migration)

[2021] AATA 5443

Singh (Migration) [2021] AATA 5443 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilbag Singh

CASE NUMBER:  1835508

HOME AFFAIRS REFERENCE(S):          BCC2017/2016390

MEMBER:Alison Mercer

DATE:27 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 September 2021 at 2:39pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Singh v MIBP [2017] FCAFC 105

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 7 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 Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that the applicant to be the subject of an approved nomination by his employer. The delegate found that the nomination of the applicant by his employer, Café 33 Cairns Pty Ltd, had been refused by the Department on 3 October 2018. The delegate found that the applicant therefore did not meet cl.187.233, and as he did not claim to meet any stream other than the Direct Entry stream, he could not be granted a subclass 187 visa.

6. The Tribunal received a review application from the applicant on 3 December 2018. It was accompanied by a copy of the delegate’s decision.

7. On 26 July 2021, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 20 August 2021.

8. On 3 August 2021, the Tribunal wrote again to the applicant to invite him to comment on or respond to information held by the Tribunal. The Tribunal advised the applicant that although the applicant’s employer, Café 33 Cairns Pty Ltd, had lodged an application for review of the nomination refusal decision with the Tribunal, the Tribunal (differently constituted) had found that it had no jurisdiction to review the Department’s decision to refuse the nomination on 13 April 2021, as the employer company had been deregistered on 10 March 2021 and had withdrawn its review application from the Tribunal. The Tribunal noted that this indicated that the applicant was not the subject of an approved nomination by his employer, and further noted that its legal view was that a new nomination by that employer, or another employer, would not satisfy cl.187.233, particularly given that there were significant amendments to the subclass 187 visa and associated nomination program on 18 March 2018. The Tribunal advised that if it found that the applicant did not meet cl.187.233, then this would be the reason (or part of the reason) to affirm the decision under review, as he had not made any claims against any stream other than the Direct Entry stream.

9. The Tribunal invited the applicant to provide comments or respond to this information by 17 August 2021, noting that if he did not do so (or did not seek an extension of time to do so by that date), he would lose his entitlement to a Tribunal hearing and the hearing scheduled for 20 August 2021 would be cancelled.

10. On 11 August 2021, the applicant provided a written statement as follows:

    …

    I am writing in relation to the application for review made  by me in respect of decision of hearing of visa Regional sponsor migration Scheme 187 applied at 7 June 2017.

    My journey started 16 January 2014 in Australia as I first landed on this date. At the start i came in accounting and year had been very challenging for me both mentally, physically and emotionally. After a year I switched to cookery and I gracefully finished certificate 3 and 4 in hospitality. After finish certificate 4, I want to go further in the field and this profession makes me feel more lively towards my life so I start  looking job in this field as well.

    I have applied several jobs but most of them needed experience. So I ended up contacting the lawyer after consultation with my lawyer he suggested me that I should start looking for jobs that doesn’t need experience so that I can start from somewhere.

    Eventually I started looking online for the jobs and I ended up contacting the company named AWSAM HRM run by two ladies related to Fiji Indian and Indian Nationality’s. They suggested me they have a place for me as a full time worker in Café named CAFÉ 33 situated in Cairns In far North Queensland. They also said that business in Cairns can sponsor me as well. That time I thought it’s a very  good chance for me to achieve my future goals  So I agreed the visa 187 Regional Sponsor Migration Scheme. Even the company named AWSAM HRM Consultation asked me for their commission in advance which was quite suspicious at that time. But I was not in the state of mind to understand that. Even they put a condition on me that only their lawyer named AIS Migration on my behalf as they will not provide any business related documentations to any other lawyer. I didn’t find anything wrong to say no.

    I agreed and applied through their lawyer. After applying my visa I started contacting them so that I can start Job there but they refused me straight way by saying that I need to start my job after getting my visa because  visa condition say that i can start  job between 3 months after getting my visa. I tried to convince them I can even start my job before even getting my visa but they refused me all the time. After one year my file opened and lawyer contacted the business owner for the documents and the business owner didn’t send the documents properly. But the lawyer were keep asking me again and again for the documents. So I contacted them but café owner didn’t reply me anything. They didn’t provide any documents as per asked my Visa Officer. My nomination got refused. So I tried to get my refusal letter from Café owner and from lawyer. They refused to give me refusal letter and they said they have legal rights not to provide the letter.

    Moreover, I again tried to contact the company by emails and by their phones. But Their all contacts addresses and phone numbers didn’t respond. They closed their company as well. That moment I realised I got into FRAUD by these two ladies and owner of the business.

    This whole situation affected my mental health so badly. After this incident my life changed drastically. The lost time of my life because of them would never come back. As this incident shook me so badly that even after refusal I was unable to work even at some point of my life. So then my parents supported me financially by sending money from overseas.

    This is a brief information of my case. And I want to open more regarding this on my hearing. Here are some more evidence I want to attach regarding my case:

    Proof of commission payment $5000 to requirement company name ASRAM HRM.

    Proof of contacting the business owner and lawyer asking for refusal letters .

    Proof of air tickets to Brisbane to see the employer and the lawyer.

    …

11. The applicant also provided documentary evidence of a previous student visa application that was withdrawn and an invoice from his former agent for their services.

12. The applicant appeared before the Tribunal by telephone on 20 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

13. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

14. The applicant confirmed the contents of his written statement. He told the Tribunal that he contacted his then agents several times about being able to commence work with Café 33 Cairns Pty Ltd but the agency stalled and would not respond to his emails. He said that he was reliant on the agency for advice and guidance so he waited. He estimated that he tried 4 times to arrange a work start date but was fobbed off on each occasion. The applicant said that he was at all times ready to relocate from Melbourne, where he was living at the time, to Cairns to start work. He said that he went to Brisbane 4 times. The applicant said that he called Café 33 Cairns Pty Ltd directly about starting work but was told by them that he would be called when needed. This happened several times. The applicant told the Tribunal that he began to feel that he had been taken for his money by the agency and the employer.

15. The applicant said that after his subclass 187 visa was refused, he became very depressed and upset. He was unable to work and his father in India sent him funds to support himself. The applicant said that he continued to pursue the agency for information but then they closed and shut down their email account. The applicant said that he was able to continue to live in Australia with the financial support of his father and sister in India (his sister is a doctor) and his uncle in Australia, who is an Australian citizen. He also did part time work at times as a cleaner and in a restaurant.

16. In response to the Tribunal’s query, the applicant said that he was now living in shared accommodation with his uncle in regional Victoria. He said that he had not sought further migration advice since his visa was refused as he was very disillusioned by his experiences with his former agent and could not afford to engage another agency.

17. The Tribunal discussed with the applicant the contents of its s.359A letter to him, noting that it had jurisdiction only to review his entitlement to the subclass 187 visa for which he applied in 2017, and it appeared he could not meet one of the mandatory requirements for this, which was to have an approved nomination from Café 33 Cairns Pty Ltd. The Tribunal further noted that it was unable to waive this requirement, for instance on compassionate or compelling reasons, as the relevant law did not contain any discretion to do so. The Tribunal further noted that its view was that, legally, even a nomination by a new employer would not meet the visa requirements.

18. The applicant reiterated that his visa application was unsuccessful for reasons outside his control, and he just wished to have a chance to prove himself. He said that he was confident he could obtain employment in another restaurant if given a chance, and that he could find a new nominator. He also noted that his parents had spent substantial sums of money on his education and support in Australia and he had not seen them for 8 years, as he had been in Australia. He said that his dreams had been ruined and he was stressed and depressed at the prospect of having to leave Australia empty handed.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nomination of a position

20. 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.

21. 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.

22. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of the applicant by Café 33 Cairns Pty Ltd, was refused by the Department on 3 October 2018.

23. As discussed with the applicant and set out in the Tribunal’s s.359A letter, although Café 33 Cairns Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 13 April 2021, as the company had been deregistered on 10 March 2021 and it had withdrawn its review application from the Tribunal.

24. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. 

25. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

26. This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

27. Although the Court’s comments were, strictly speaking, obiter, they are nonetheless persuasive in relation to subclass 187 visas in both the TRT and DE streams. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.187.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  There is no longer a nomination review pending in this case.

28. Moreover, the Tribunal notes that legislative changes took place on 18 March 2018 which affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version.  While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.187.233 in relation to a subclass 187 visa application made prior to 18 March 2018, as is the case here.

29. Accordingly, the Tribunal finds that the applicant cannot meet cl.187.233(3) and thus cannot meet cl.187.233 as a whole.

30. 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 to refuse to grant him a subclass 187 visa must be affirmed.

    DECISION

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

    Alison Mercer
    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.