Singh (Migration)

[2020] AATA 5323

Singh (Migration) [2020] AATA 5323 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  PARDEEP SINGH

CASE NUMBER:  1902904

HOME AFFAIRS REFERENCE(S):          BCC2017/2315480

MEMBER:Damien O'Donovan

DATE:15 December 2020

PLACE OF DECISION:  Canberra

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

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – refusal of related position nomination affirmed on review – no substantive response to tribunal’s invitation to comment – procedural fairness – request for recording of nomination review hearing – access to recording could not alter result of visa review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360

Migration Regulations 1994 (Cth), r 5.19; Schedule 2, cls 187.223, 187.233

CASE

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

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

2. The applicant applied for the visa on 29 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 (the Regulations). The primary criteria must be satisfied by the applicant. 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 a visa in the Direct Entry stream, to work in the nominated position of Retail Manager at Canwash Pty Ltd. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the position to which the application relates (the position with Canwash) had not been approved at the time of the delegate's decision.

5. The applicant applied for review of the departments’ decision on 8 February 2019, and submitted a copy of the primary decision record with the review application.

6. The Tribunal is satisfied that, as a consequence of a decision it made earlier, not to approve the nomination of the Canwash position, this visa application must be rejected. It is an essential criterion for the grant of this visa that the nominated position’s application has been approved (cl 187.223(3)). In circumstances where it has not been approved the Tribunal cannot grant the visa.

   CANWASH PTY LTD APPROVAL OF NOMINATION OF A POSITION DECISION

7. On 20 December 2018, a delegate of the Minister for Home Affairs made a decision to reject Canwash Pty Ltd’s application for approval of the nomination of a position under r.5.19 of the Regulations. On 4 January 2019, Canwash Pty Ltd. applied for review of this decision in the Tribunal.

8. The applicant appeared before the Tribunal on 1 October 2020 to give evidence in relation to the Canwash Pty Ltd position nomination. The Tribunal also received oral evidence from Mr Bhardwaj, the director of Canwash Pty Ltd.  

9. On 30 October 2020, the Tribunal affirmed the decision to reject Canwash Pty Ltd’s application for approval of the nomination of a position under r.5.19 of the Regulations.

10. That decision creates an insurmountable barrier to the grant of 187 visas to the current applicant. However, to comply with the requirements of Part V of the Migration Act the Tribunal undertook the following process.

    S 359A LETTER AND RESPONSE

11. By letter dated 3 November 2020, and in accordance with section 359A of the Act, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review.

    The particulars of this information were:

    ·On 1 June 2017, Canwash Pty Ltd. applied for approval of the nominated position of ‘Retail Manager (General)’. You applied for a Class RN Subclass 187 visa as the proposed nominee.

    ·The nomination to which that position relates was refused by the Department of Home Affairs (the Department) on 1 February 2018. Canwash Pty Ltd. applied to the Tribunal for review of the nomination refusal; however, on 30 October 2020 the nomination review was affirmed by the Tribunal.

    This information is relevant to the review because one of the requirements for grant of this visa is that the relevant nomination, that is the nomination of the position that you relied on when lodging your visa application, has been approved.

    If the Tribunal relies on this information, it would find that the relevant nomination has not been approved. The Tribunal may then go on to find that you do not meet the requirements of cl. 187.233(3) and the decision under review would be affirmed. 

12. The invitation was sent to the applicant’s authorised recipient. The letter advised that if the applicant did not provide comments on or a response in writing by 17 November 2020, or if the request for extension of time to provide comments on or response to the request was not received by the Tribunal on or before 17 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The following day, on 4 November 2020, the Tribunal invited the applicant to attend a hearing on 26 November 2020. This letter attached a ‘Response to hearing invitation’ form. Later that day, the applicant’s registered migration agent wrote an email to the Tribunal to clarify whether the invitation for comment and the hearing invitation were correct. The email stated:

    The invitation to attend a hearing received this afternoon follows on from the invitation for comments received yesterday given the Senior member affirmed the nomination refusal.

    Are you able to clarify if one of both of the invitations are correct?

14. The Tribunal responded to the applicant’s registered migration agent as follows:

    Thank you for your email.

    I confirm that both invitations are correct. Your client has been provided with the opportunity to respond to adverse information, and we have also scheduled a hearing for a later date.

15. On 12 November 2020, the applicant’s registered migration agent wrote an email to the Tribunal, requesting a copy of the hearing recording in the following terms:

    Please find attached the hearing response.

    The all clients request a copy of the hearing recording.

16. Nothing in the hearing response responded to, or suggested it was a response to the invitation for comment. Nothing in the email requesting the recording suggested it was a response to the invitation for comment. No other response was received from the applicant by 17 November 2020.

17. As a consequence of the failure to respond to the invitation to comment or respond by 17 November 2020, the applicant lost his right to a hearing as a consequence of the operation of section 359C(2) and section 360(2) and (3). The Tribunal was legally obliged to cancel the hearing (see Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413).

18. On 24 November 2020, the Tribunal wrote to the applicant’s registered migration agent advising that the hearing (as scheduled in accordance with the 4 November 2020 letter) had been cancelled. The letter stated:

    I am writing to advise that this hearing in this matter… has been cancelled.

    This is because the Tribunal did not receive a relevant response to the letter sent to you on 3 November 2020. This letter required you to provide a response, or request further time to provide a response, by 17 November 2020.

    The Tribunal did not receive a relevant response within this time frame. As a result, pursuant to section 395C of the Migration Act 1958, you are no longer entitled to appear before the Tribunal.  

19. On 24 November 2020 the applicant’s migration agent wrote to the Tribunal in the following terms:

    I have made three requests for the recording of the hearting (sic) so that my clients can review it in order to make a response. To date the AAT has failed to respond to those requests and by doing so have failed to provide my clients with procedural fairness of natural justice in this case. On this basis I would recommend that this notice be withdrawn.

20. The Tribunal is aware of one request for the recording of the Canwash hearing being received by the Tribunal in these proceedings, the Canwash proceedings and an identical request being made for the recording in relation to an application by another employee of Canwash. These requests had not been actioned prior to the cancellation of the hearing.

21. There was nothing about the request for the recording which constituted a comment or response to the section 359A invitation. Consequently, the cancellation of the hearing was required by operation of law.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the nomination of the position which was nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(h)(ii) has been approved.

    Nomination of a position

24. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which this application relates, be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia.

25. This criterion also requires that the nomination has been approved and has not been subsequently withdrawn.

26. The position nominated has not been approved.

27. The Tribunal affirmed the delegate’s decision not to approve the nomination on 30 October 2020.

28. Therefore, cl.187.233(3) is not met.

29. 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.

    Claims of a breach of requirements of procedural fairness

30. The applicant’s representative raised the possibility that it would be a breach of procedural fairness for the Tribunal to proceed to make a decision in this matter in light of his request for the audio recording of the Canwash hearing. A number of things should be noted about that.

31. Mr Singh’s migration agent was present throughout the Canwash hearing. He was in a position to take notes or record any factual matters which he considered to be relevant in the course of the hearing and make use of them in progressing his clients’ applications. The hearing was a public hearing. Accordingly there is nothing in the hearing recording which the applicant was not already aware of when the time for responding to the section 359A letter expired.

32. Further, in making this decision the Tribunal has not had regard to the recording of the previous Canwash decision. There was no need to do so. The only relevant point to arise from the Tribunal’s consideration of the Canwash nomination is that the nomination of the position was refused. The consequence is that the current applicant cannot be granted the visa he seeks because there is no approval of the nominated position’s application for approval. Access to the recording could not alter that result.   

    DECISION

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

    Statement made on 15 December 2020 at 9:52am

    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.