Singh (Migration)

[2021] AATA 538

Singh (Migration) [2021] AATA 538 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harwinder Singh

CASE NUMBER:  1827468

HOME AFFAIRS REFERENCE(S):          BCC2016/4333241

MEMBER:Alison Mercer

DATE:2 March 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 2 March 2021 at 1:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – subject of approved position nomination – related nomination application refused and application for review withdrawn – applicant not informed of withdrawal – current employment with another employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)

CASES
Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
Singh v MIBP [2016] FCCA 2229
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 (the Act).

2. The applicant applied for the visa on 22 December 2016. 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 (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 Direct Entry stream, to work in the nominated position of Café or Restaurant 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, which required that he was the subject of an approved nomination by his Australian employer. The delegate noted that the nomination by the applicant’s employer, Arun & Brothers Pty Ltd (trading as Oh! Delhi), was refused on 8 August 2018. As the applicant did not meet cl.187.233 as a whole, he did not meet the criteria for the Direct Entry stream. The delegate found that the applicant had made no claims against the Temporary Residence Transition stream.

6. The Tribunal received a review application from the applicant on 19 September 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Daniel Estrin, as his representative and authorised recipient for correspondence.

7. On 8 October 2020, the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted by teleconference on 20 November 2020.

8. On 19 November 2020, the applicant’s new agent, Ms Puneeta Gupta, provided a legal submission, as follows:

   …

   On behalf of my client Harwinder Singh I am making the following submission for your worthy perusal as his application for a Regional Sponsored Migration Scheme (Class RN 187) visa has been made on 22 December 2016 in relation to an appointment of a ‘Cafe or Restaurant Manager  (ANZSCO 141111)’ by his previous employer ARUN & BROTHERS PTY LTD Trading as Oh! Delhi (since 27 Aug 2015) based on the Direct Entry stream was refused on 7 September 2018. 

   The main reason cited by the Delegate in his refusal of main application was that  criterion 187.233(3) is not met as the appointment has been refused because on 8 August 2018, the nomination lodged by ‘ARUN & BROTHERS PTY LTD’, trading as ‘OH! DELHI’ was refused.

   The nominator i.e. the employer claimed to meet the criteria for approval of the nomination of a position in Australia under the ‘Direct Entry’ stream as he does not meet regulation 5.19(4)(h)(ii)(C).

   The client was issued with a Natural Justice Letter inviting him to comment on the nomination refusal within 28 days to which the client’s then RMA did not encourage the client to respond to although he wanted to and subsequently the application was refused. When the applicant realised the consequences of the decision, he did not feel satisfied with the decision, so he chose to appeal the decision at the AAT with the consent of his employer. The nomination refusal and the main application refusal were both challenged at the AAT by the employer and the nominee. 

   Our Reasons for reconsideration of the decision:

   •Harwinder Singh position was endorsed by the RCB body of Western Australia  which implied that the RCB was satisfied that the nominator satisfied the requirements, including that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. Even though a a “Declaration of genuine attempt” letter and all evidence related to applications received to fill the position, yet the Delegate concluded unreasonably that the attempts to fill the position were unpersuasive. The Delegate did not detail any reason why he thought he reached that conclusion and took decision on that ground that the employer has not made adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position.

   The review applicant was employed with the business until August 2019 as he was exceptionally skilled and performed well in his occupation and contributed holistically to the overall success of the business using his qualifications and innovation. The business did not just hire the applicant rather he proved that he was the most suitable candidate so when the employer received applications from equally or more qualified people to fill the position he could not overlook the skills of Harwinder Singh who was so effectively assimilated into the role and was well adapted. Due to this the employer chose to disregard applications received and rather chose to nominate the review applicant for the position as he had future plans to further expand his business and use the review applicant to catapult his business success. 

   •Harwinder has since then left the employer but continues to remain employed in this occupation for another employer. His employer has disadvantaged him by subsequently losing hope due to the time delay in deciding at the AAT for his review application. He withdrew his nomination review application without informing the review applicant although the review applicant was always kept under the impression that once his nomination application decision has been reviewed at the AAT he will be asked to recommence his position with the employer.

   •The review applicant firmly believes and strongly feels he has been a scapegoat of all the time delays that have been caused while determining the outcome of his application during which the Department policies significantly changed and their aversion to not approving nominations for such occupations increased. Had his application been determined in a timely manner within stipulated time frames of 6-8 months that the Department usually took to make such decisions his nomination would have been easily approved and he would be able to remain on his visa that he applied.

   Applicant feels he was not given fair treatment by the Delegate and the only reason for his nomination application which further led to his visa application also being refused on petty grounds was more so because of his status as an international student when he applied for the visa.

   Therefore even though the applicant can not meet the eligibility criteria to be approved for the 187 visa it is requested that the applicant be given special permission to apply another nomination in the same occupation so that he can continue to develop his skills and contribute to the economy and business that will employ him. 

   It is therefore requested that given the nominee’s exceptional skills and abilities he should be permitted to apply for another nomination under special circumstances as he has been disadvantaged by his employer who withdrew his nomination without the review applicant’s cognizance so that he can avail himself of a fair opportunity. 

   Due to the current onshore refusal the applicant is unable to make any further visa applications onshore as he is barred under s48. In case the Honorable member does not consider him eligible for the grant of 187 visitor kindly allow him another opportunity under his discretionary powers. It is because due to current lockdown situation he will not be able to depart Australia due to current lockdown situation. 

9. Also provided were copies of the applicant’s Australian qualifications, his positive skills assessment from Vetassess for his nominated occupation, a reference letter from his former employer, Arun & Brother Pty Ltd (trading as Oh! Delhi), and an undated organisational chart, apparently from his new employer, Parade Hotel, showing that he continues to work as a Café or Restaurant Manager for them.

10. The applicant appeared before the Tribunal via telephone on 20 November 2020 to give evidence and present arguments. He and the Tribunal were assisted by an interpreter in the English and Punjabi languages.

11. The Tribunal exercised its discretion to hold the hearing by telephone as it was held during the COVID-19 pandemic. Moreover, the applicant was based in Western Australia while the Presiding Member was in Melbourne. 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.

12. The applicant confirmed that he was aware that his employer had withdrawn its review application from the Tribunal on 13 February 2020, as set out in his agent’s submissions. The applicant told the Tribunal that he had worked for that employer since January 2017, and that he had moved from Queensland to Western Australia to take up the position after he was the successful candidate for the job when it was advertised on Seek.com. The applicant said that things went well with his employer, and the employer agreed to nominate him for permanent residence, as he saw the applicant in his role as Café or Restaurant Manager as being integral to the expansion of the business. However, the Department took 19 months to process the nomination, then rejected it with a extremely brief decision which indicated that the Department did not think the employer’s labour market testing for the position was genuine. The applicant reiterated that he had been selected after responding to a Seek advertisement and had proven to be the best candidate. He also noted that the Regional Certifying Body had agreed that the position could not filled locally when it endorsed the nomination in 2016. The applicant said that this was correct, as the business was located in regional Western Australia, in Dunsborough, which was a popular local tourist spot outside Perth.

13. The applicant said that he and his employer were shocked and dismayed by the refusal of the nomination and the applicant’s visa, and agreed to seek review of both decisions at the Tribunal. However, after a considerable time had elapsed without an outcome, the employer became discouraged at the costs and time involved in the process without knowing whether the applicant would be granted permanent residence or not. He therefore withdrew his nomination review application. The applicant said that up until then, his employer had been supportive, and that he (the applicant) understood why the employer had become frustrated with the process and that he did not blame him. The applicant said that he had thought about returning to Queensland but then decided that he was committed to staying in Western Australia. He had now found another job, via Seek, as a Restaurant Manager in another regional town, Bunbury, and had been working for that employer since August 2019. The applicant said that his new employer was willing to support him. The Tribunal discussed with the applicant its legal view that a nomination by a new employer could not satisfy cl.187.233. The applicant expressed frustration about the fact he could not make a new visa application onshore due to s.48 of the Act (as he had already had a visa refused onshore) yet was faced with difficulty in leaving Australia due to the COVID19 pandemic-related travel restrictions. The Tribunal advised the applicant that he should liaise with the Department and/or a registered migration agent or lawyer regarding these issues.

14. 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

15. 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.

16. 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 r.1.13A and r.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.

17. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicant), the nomination of him by Arun & Brothers Pty Ltd, was refused by the Department on 8 August 2018.

18. As discussed with the applicant, although Arun & Brother 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 February 2020 as the company withdrew its review application.

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

20. The Tribunal notes that the applicant’s new employer may be willing to nominate him for another visa.

21. 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).

22. 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.

23. 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.

24. 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 would be the case here if the applicant’s present employer were to now lodge a nomination in relation to him.

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

1. 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

2. 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.