Singh (Migration)

[2021] AATA 3837

Singh (Migration) [2021] AATA 3837 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Janpal Singh
Mrs Navjot Kaur
Miss Japji Kaur
Miss Ekam Kaur

CASE NUMBER:  1923521

HOME AFFAIRS REFERENCE(S):          BCC2017/4759914

MEMBER:Karen McNamara

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 2:31pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Chef – no approved nomination – impact of COVID19 pandemic – decision under review affirmed         

LEGISLATION

Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 December 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 first named applicant Mr Janpal Singh (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required, Mr Janpal Singh to be the subject of an approved nomination. The delegate found that the nomination lodged by Vishwa Mittar International Pty Ltd (the nominator) was refused on 26 June 2019.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Mrs Navjot Kaur, third named applicant Miss Japji Kaur and fourth named applicant Miss Ekam Kaur, could not be granted a Subclass 187 visa, as they did not meet the secondary visa criterion (cl.187.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 22 August 2019 for review of the delegate’s decision.

9. On 5 August 2021, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 7 September 2021 at 11:30 am.

10. On 11 August 2021, the applicant requested via email the postponement of his matter, stating “This is the hearing for my Visa application. On other hand we did apply for employer nomination application at same time.

    We request to you if you can postponed my visa application hearing until the time of hearing
    employer nomination application.”[1]

    [1] Transcribed as prepared and submitted by the applicant

11. On 11 August 2021, the Tribunal by return email wrote to the applicants advising that whilst careful consideration had been afforded to the request, the matter would not be postponed as there is information before the Tribunal that shows that the associated nomination was finalised by the Tribunal on 27 May 2021.

12. On 13 August 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

13. The information related to information before the Tribunal that shows on 27 May 2021, the Tribunal affirmed the Department's decision not to approve the nomination in relation to the applicant made by the nominating employer, Vishwa Mittar International Pty Ltd T/a Holy Cow Indian Cuisine.

14. The Tribunal’s letter of 13 August 2021 additionally stated the following:

    ‘ The above information is relevant because cl.187.233(3) requires that the nomination

    made in relation to you by your nominating employer has been approved.

    The nomination relied on to satisfy cl.187.233 must be the one that was made at the

    time of the visa application – it is not possible to rely on another nomination. You must

    have a related nomination to be able to be granted the visa.

    If the Tribunal relies on this information, it may not be satisfied that your application

    meets the requirements of cl.187.233(3) and consequently the decision under review would be affirmed.

    Additionally, there is information before the Tribunal by way of allegations received

    by the Department claiming that you made a payment of $20,000 for visa

    sponsorship and never worked in the kitchen.

    Clause 187.233(4A) requires 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.

    The above information is relevant, because it suggests that there is adverse

    information known to Immigration about you (a person associated with the person who

    made the nomination) and there is no information currently before the Tribunal to

    suggest it is reasonable to disregard this adverse information.

    If the Tribunal relies on this information, it may not be satisfied that your application

    meets the requirements of cl.187.233(4A) and consequently the decision under review

    would be affirmed.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 27 August 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 27 August 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 27 August 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 5 August 2021.
    Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you will lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal will proceed to make a decision on the review without taking any further action to obtain your views on the information.’

15. On 23 August 2021 the Tribunal received via email advice from the applicant’s newly appointed representative stating “Our client recently engaged us to assist him with the above-mentioned matter. We are in the process to collect information from our client and request you provide us with an extension of 8 weeks to respond in relation to the above-mentioned matter’.

16. On 24 August 2021, the Tribunal by return email wrote to the applicants advising that whilst careful consideration had been afforded to the request, an extension was not granted, and the hearing will proceed as scheduled. The letter further advised that the applicants would be afforded opportunity at the hearing to discuss the issues raised in the Tribunal’s invitation to comment (dated 13 August 2021) and whether they are subject of an approved nomination. The letter also stated that the comments or response must therefore be received by 27 August 2021, as previously advised.

17. On 30 August 2021, the Tribunal received an email from the applicant’s authorised representative sent on Saturday 28 August 2021, which the Tribunal notes was sent after the date specified by the Tribunal. The email contained a submission from the representative, in addition to a Statutory Declaration by the applicant signed and declared on what appears to be either 25^th or 28 August 2021.

18. The submission stated as follows:

    ‘Background

    The applicant is 32 years old and an Indian Citizen by birth. He arrived in Australia on a valid student visa on or around 10 February 2008. The applicant is married and the father of two children aged 7.5 years and 4 years. The applicant has 4 years of Australian work experience as a Chef. He is currently working as a Chef on a full-time basis with Orka True Indian Cuisine since March 2019.

    The applicant has completed his Diploma of Hospitality, certificate III and IV in Commercial Cookery. On or around 17 November 2015, he applied for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa, which was refused by the Department of Home Affairs on 29 July 2016.

    On or around 13 December 2017, the applicant lodged a Regional Employer Nomination (subclass 187) visa based on the Direct Entry stream, which the Department of Home Affairs also refused on 06 August 2019. The applicant has applied for a merit review of the decision with the AAT.

    On 09 March 2020, the applicant lodged a Skilled Work Regional (Provisional) (subclass 491) visa, which is currently under the process with the Department of Home Affairs.021 13:22:20
    In response to the requested information

    The applicant was unaware that the nomination review application has been unsuccessful, and he only received this information by your letter dated 13 August 2021.

    ● Department alleging payment of $20,000.00 for visa sponsorship and never worked in the kitchen.

    The Applicant strongly denies any such allegation and confirms that all his work experience and other documents submitted with his applications are genuine. The Applicant has always strictly followed all his visa conditions since he arrived in Australia. He has never been involved in any kind of unlawful activities, including paying someone for sponsorship.

    The Department’s allegations are vague, unreasonable, and entirely baseless. The Applicant bears Australian qualifications, experience, and a positive skill assessment. His qualification and experience make him eligible for paid employment.

    On the other side, the Department allegations are not supported by any evidence. In this case, the Applicant relies on s 187.233 (4 A) (b), which states as follows:
    (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.

    The applicant sought an extension of time due to the following reasons:

    ● Current COVID -19 restrictions and its impact on the Applicant:

    The current COVID-19 restrictions have limited the Applicant’s opportunity to seek any legal advice in relation to his matter. He has recently engaged our services, and we need a further extension of minimum 8 weeks to enable us to advise him properly.

    Our office is currently preparing an FOI application and estimate that the requested information should come within a period of 8 weeks. The Applicant has limited knowledge about immigration rules. Also, our office is located in Victoria, and he is unable to make a personal visit to our office due to the interstate travel restrictions.

    If a negative decision has been made on the basis of the current information before the AAT, it will not only impact his natural justice right but will also put him at risk to leave the country.
    4105] out of time /2021 13:22:20
    It should also be noticed that all the international flights are currently suspended between Australia and India, and travel to India will be not possible in the current situation.

    ● Absence of face-to-face hearing

    We are aware that the AAT matters are currently being heard online, and face to face hearings are not in place. The Applicant is not a technology-friendly person and prefers a face-to-face hearing. The Applicant has been in Australia for over a decade, and he has made multiple visa applications with the Department of Home Affairs. The Applicant wants to express his feelings and emotions with the honourable Member in person and strongly request to adjourn his matter until a face-to-face hearing is in place.

    ● Financial hardship

    The Applicant is the sole breadwinner of the family. The current pandemic has affected his earning capacity. It will also limit his options to seek legal advice from a competent migration lawyer or agent.

    The Applicant also has limited funds to spend on legal advice. If the Applicant has been forced to depart Australia, it will cause a real financial hardship on him to buy the expensive airfares.

    The Applicant’s children are also enrolled in the school, and any relocation will impact the minor’s interest as well.

    ● Pending 491 Visa Application with the Department

    The Applicant’s 491 visa application is currently pending with the Department of Home Affairs. His application for subclass 491 was made on or around 09 March 2020, and a decision should be made in the coming days by the Department. The Applicant’s skills and eligibility made him eligible for the 491 visa and it is highly likely that his application will be approved by the Department of Home Affairs.

    The Applicant also likes to bring to your kind attention that he is staying in Australia for over a decade and has strong personal tie ups in Australia. It will be in the best interest of the Applicant and also in Australian business if the AAT adjourn the matter until his 491-visa application is finalised by the Department.

    The applicant has always followed his visa condition strictly while residing in Australia. He has always worked following his working rights and made a positive contribution to the Australian community.
    [
    The Applicant is also well connected with the local Australian Indian Community and highly respected among them.

    Due to all reasons mentioned above, it is submitted that the Registrar should disregard any baseless allegations made against the Applicant and adjourn any upcoming hearing until his 491-visa application is finalised by the Department.’[2]

    [2] Transcribed as prepared and submitted by the representative.

19. On 30 August 2021, the Tribunal wrote to the applicant’s authorised representative advising as follows:

    ‘I refer to your submission of 28 August 2021 in response to the Tribunal’s invitation to comment dated 13 August 2021 and note your request to postpone the hearing scheduled for 7 September 2021. The Member has carefully considered Mr Singh's request to postpone the hearing, however in this instance, no postponement will be granted and the hearing will proceed by telephone at the scheduled date and time.

    The Tribunal further notes that the response to the Tribunal’s invitation to comment has been received out of time, however the Member will provide Mr Singh an opportunity to address the issues raised in the letter of 13 August 2021, at the hearing on 7 September 2021.’

20. In affording consideration to the representative’s submission, the applicants’ request to postpone the matter and the subsequent request by the representative to afford additional time to respond to the s.359(a) invitation of 13 August 2021, the Tribunal notes that the applicant has been aware of the reasons for the refusal of his visa application since 6 August 2019 and as such has had approximately two years to seek legal representation. In declining the requests for postponement and extension of time, the Tribunal has had regard to the nature of this matter and has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

21. In regard to the representative’s request that the matter be adjourned ‘until a face to face hearing is in place’, the Tribunal observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate. The Tribunal considers that the placement of an applicant’s review on hold pending the purported reason to attend a face to face hearing, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act. There is no indication of when the current restrictions will be lifted and hence, the Tribunal does not consider it appropriate, having regard to the nature of this matter, to delay a hearing.  

22. The Tribunal notes the representative submits that the hearing be adjourned until the applicant’s subclass 491 visa application is finalised by the Department. In this regard, the Tribunal is mindful that requests for adjournments must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. The Tribunal has carefully considered the representative’s request but declined to adjourn the hearing or defer its decision in this matter pending the outcome of the Department’s decision in regard to the applicant’s subclass 491 visa application.

23. Mr Janpal Singh appeared on behalf of the applicants, before the Tribunal via telephone, on 7 September 2021 to give evidence and present arguments.

24. 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 applicants. 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 applicants were given a fair opportunity to give evidence and present arguments.

25. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

26. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

29. 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.

1. 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.

2. At the hearing of 7 September 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.187.233, the applicant must be subject of an approved nomination.

3. The Tribunal invited the applicant to address the hearing in so far as there being no evidence of the applicant being subject of an approved nomination. The applicant requested that his representative respond on his behalf to which the representative submitted that the applicant was aware that there was not much merit in his application as there was no approved nomination. The representative requested that the Tribunal put its decision on hold pending the outcome of the applicant’s subclass 491 visa application with the Department. The Tribunal told the applicant and representative that it was not prepared to put the matter on hold and that the Tribunal is not required to indefinitely defer its decision-making process.

4. The applicant addressed the hearing and told the Tribunal that after the Department refused the nomination and his visa application, he relocated to South Australia where he is currently working as a Chef. In response to the allegations made against him, the applicant was adamant that the allegations are complete lies. The applicant is distressed by these allegations and told the Tribunal that he is concerned that these lies may be the reason his 491 application is taking so long to be processed. The applicant stated that he is qualified to work as a Chef and holds a skilled assessment attaining to his skills. He has never paid anyone for a visa noting that he does not have that sort of money and he would never work for someone who wanted money from him. The applicant is concerned about the impact of the unsubstantiated allegations on his 491 application and about the future of his children.

5. The Tribunal notes that at the time of this decision, there is no evidence before it, to support the allegations.

6. The Tribunal is satisfied the applicant has been given the opportunity to address the adverse information and that any procedural obligations have been discharged.

7. The Tribunal has empathy for the applicants circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant at the hearing, the Tribunal must apply the relevant law. 

8. Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.

9. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

10. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

11. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the second named applicant Mrs Navjot Kaur, third named applicant Miss Japji Kaur and fourth named applicant Miss Ekam Kaur as a member of Mr Janpal Singh’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.187.311.

12. The applicants have 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.

13. The Tribunal brings to the Department’s attention evidence before it, that the applicant lodged offshore, a subclass 491 visa application with the Department in March 2020 and is awaiting the outcome of said application. The applicant has requested the Department take this into consideration following the Tribunal affirming his subclass 187 review application.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Karen McNamara
    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.