Singh (Migration)

[2020] AATA 5285

Singh (Migration) [2020] AATA 5285 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manjeet Singh
Mrs Vinkey Dhariwal

CASE NUMBER:  1802865

HOME AFFAIRS REFERENCE(S):          BCC2017/2309270

MEMBER:Mark Bishop

DATE:18 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2020 at 11:57am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – subject of an approved nomination – request for adjournment declined – Migration and Refugee Division Practice Direction – medical certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
MIAC v Li (2013) 249 CLR 332

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 on 16 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 June 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream to work in a nominated position.

5. The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted by his Migration Agent (MA).

6. The delegate refused to grant the visa because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because on 14 December 2017 the nomination lodged by JAI SACHIDANAND PTY LTD being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Immigration and Border Protection.

7. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal.

8. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

   Request for Adjournment

9. On 17 November 2020 the applicant wrote to the Tribunal and requested an adjournment as follows:

   ·I am writing you in relating my AAT hearing which is on 18/11/2020. As I am sick and get test for COVID-19 today around 9:30 and waiting for my results. Doctor suggest me to self-isolate for 14 days till my result out comes positive or negative as I had bad cough and sore throat. I request you to be extend the hearing date further so I will answer better your enquires. I am waiting for your response. I attached my medical certificate and COVID -19 recommendation form from my GP.

   ·The attached medical certificate stated the applicant was suffering from a medical condition (not specified) and would be unfit for work from 17 November 2020 to 18 November 2020

10. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:

    Seeking an adjournment

    ·7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    ·7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

11. The medical certificate provided to the Tribunal was not consistent with this requirement set out in cl.7.4 as set out in paragraph 10 above. Nonetheless the Tribunal does not reject the request for an adjournment based on this technical conclusion. The Tribunal intends to fully consider the substance of the letter and medical opinion provided by the applicant and MA to the Tribunal prior to the hearing.

12. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

13. The medical certificate and accompanying letter referred to a medical condition. It did not identify the medical condition or provided any detail. The medical certificate did not state the applicant suffered from a sore throat or bad cough. It did make any reference to Covid-19. It did not recommend the applicant self-isolate for any period of time. The applicant was not required to attend Tribunal offices in his home state.  The medical opinion did not state he was unable to attend a brief hearing conducted over the phone. The medical opinion did not state the applicant should not attend a brief phone hearing.

14. The Tribunal refused the application for an adjournment.

15. 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

16. Clause 186.233 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. 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.

17. In addition, this criterion also requires that:

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

18. On 20 October 2020 the Tribunal wrote to the applicant in the following terms:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·You applied for the Subclass 186 (Employer Nomination Scheme) visa based on a nomination of a position made by the nominator JAI SACHIDANAND PTY LTD. The nomination to which that position relates was refused by the Department of Home Affairs (‘the Department’) on 14 December2017.

    ·It is a requirement for the grant of a Subclass 186 visa that the nomination has been approved and that the nomination has not subsequently been withdrawn (cl 186.233).

    ·The Tribunal’s records indicate that the nominator lodged an application for review of the Department’s decision to refuse the nomination with the Tribunal which the Tribunal affirmed on 17 July 2020.

    ·This means that the Department’s decision refusing the nomination in relation to you stands. Therefore, the relevant nomination for the position has not been approved.

    This information is relevant to the review because one of the requirements for the grant of the Subclass 186 visa is that the relevant nomination, that is the nomination you relied on when lodging your visa application, has been approved, and the information suggests that the nomination has not been approved and/or that it has been withdrawn.

    If we accept and rely on this information in making our decision, we may find that the relevant nomination has not been approved or has been withdrawn and therefore that you are not the subject of an approved nomination and do not meet the requirements of cl 186.233. This would be the reason or part of the reason for the Tribunal to affirm the decision under review, that is, the decision made by the Department to refuse you the grant of a Subclass 186 visa.

    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 3 November 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

19. On 3 November 2020 the applicant provided the following information to the Tribunal:

    ·Past enrolments in course of study back to 2011, employment history since 2011, current employment as a full-time transport manager as the holder of a 457 visa, ATO Tax Assessment FY2016, 2014 pay slip and PAYG payment summary FY2018.

20. Excluding the information summarised above in paragraph 19 the applicant did not provide any information relating to the Request for Information and particulars as outlined in paragraph 18 above.

21. On 14 December 2017 the nomination lodged by JAI SACHIDANAND PTY LTD being the nomination referred to in paragraph 186.233(1) was refused by a delegate of the Minister for Immigration and Border Protection. This decision was affirmed by the Tribunal as outlined above.

22. In evidence to the Tribunal the applicant advised he could not provide evidence of a current nomination.

23. There is no evidence before the Tribunal that the relevant nomination has been approved. The evidence before the Tribunal is that the prior nomination has been withdrawn and therefore that the applicant is not the subject of an approved nomination and does not meet the requirements of cl 186.233.

24. Therefore, cl.186.233 is not met.

    Secondary Applicant

25. The secondary applicant is a member of the family unit of the applicant. She is not the member of the family unit who holds the appropriate visa and hence does not meet the criteria se out in cl.186.311.

    CONCLUDING PARAGRAPH (ALL ISSUES)

26. The applicant has only sought to satisfy the criteria for a Subclass 186 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

27. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Mark Bishop

    
    

    Member

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    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.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.