Singh (Migration)

Singh (Migration) [2020] AATA 3075 (21 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Adeshbir Singh
CASE NUMBER:  1931074
HOME AFFAIRS REFERENCE(S):          BCC2018/1007981
MEMBER:Phoebe Dunn
DATE:21 July 2020
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 21 July 2020 at 4:24pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – related nomination application withdrawn – work difficulties and termination of employment under new owner of sponsoring business – personal difficulties after car accident – mental health and treatment – relationship with Australian citizen partner – no circumstances to warrant referral for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233(3)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 2 March 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Motor Mechanic (General) (ANZSCO 321211).
The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by P.M Regional Pty Ltd, being the nomination application referred to in cl.187.233(1), was withdrawn by the nominator on 25 September 2019 and as such there was no approved nomination.
The applicant appeared before the Tribunal by telephone from India on 16 June 2020 to give evidence and present arguments. The Tribunal also took evidence from Ms Kirat Kaur, the applicant’s girlfriend, an Australian citizen, who appeared as a witness for the applicant.
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 applicant consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the nomination by the nominator has been approved.
In oral evidence at the hearing and written submissions, the applicant has provided detailed evidence about the history of this matter and his application. In considering these submissions, the Tribunal has noted and accepts the applicant’s evidence of the circumstances that led to the withdrawal of the related nomination application.
The applicant stated that he started working as a Motor Mechanic for Toyota in Wonthaggi on 1 May 2017. He stated he was a valued employee, received good results for his work and had a good working relationship with his colleagues. He stated that during this period he never received any complaints from customers or his employer and had always met his targets. He stated that he had received bonuses and praise from his manager Tom. He stated that it was on this basis that his employer agreed to sponsor him for his Subclass 187 visa. He noted that his employer sold the business to PM Motors and he continued to work for PM Motors in Wonthaggi for another six months before he was transferred to PM Motors in Leongatha on 1 May 2018.
According to the applicant, this was when his circumstances took a turn for the worse. He stated that he had to travel over 70km to get to get to work in Leongatha each day and was treated differently by his colleagues and he felt discriminated against and bullied. He stated that that he received his first written warning from his employer regarding his performance on 13 August 2018 and was very deferential in his response as he was willing to learn and try harder. He stated that he continued to try his best but received a total of three written warnings stating he was not working at the expected level and was ultimately terminated from his position. He stated that he did not feel that the warnings were fair and that he was not given a proper or appropriate opportunity to respond. He stated that he could have been placed on performance management if they were worried about his skills. He stated that everyone makes mistakes and that he was unfairly targeted for the mistakes he made.
During this period, the applicant described increasing feelings of helplessness and low self-esteem, which he stated was caused by the discrimination and bullying that he was experiencing. He stated he was having trouble sleeping at night and consulted a doctor regarding his mental health. He stated that his doctor had recommended that he be transferred back to Wonthaggi, but this request was not accepted by his employer. He stated he felt he was disrespected and taken advantage of at work.
The applicant stated that on 21 December 2018 he was involved in a traumatic car accident, involving the death of an intoxicated pedestrian. He described extensive financial loss caused by his car being written off and having to buy a new car. He also described the mental trauma he experienced as a consequence of the accident, for which he received no support from his employer.
The applicant stated that the person who fired him and was the source of much of the discrimination and bullying was fired not long after he left. He stated that this person had acted the same way to others, including an apprentice who was also ‘let go’. The applicant stated that he feels like he was unjustly dealt with and that it has had a major impact on his mental health, requiring him to seek counselling. He stated he believed he made genuine efforts to perform his job to the best of his ability.
In written submissions and oral evidence, the applicant has requested the Tribunal consider his personal circumstances when determining the outcome of his application. The applicant noted that he had worked in the nominated position for over two years, was committed to regional Australia and had made donations to organisations supporting young children in need. The applicant noted that his mental health will be further impacted if he is not granted a visa. The applicant noted he has a girlfriend in Australia who will also be impacted if he is not granted the visa.
In response, the Tribunal stated that it understands that the circumstances of this matter are very difficult for the applicant, but that unfortunately, the Tribunal has no discretion in relation to the requirement that the related nomination application has been approved. The Tribunal noted that irrespective of the actions of the nominator, if the nominator has withdrawn the nomination, the applicant cannot meet the requirements of cl.187.233(3) which requires that the related nomination application has been approved. The Tribunal noted that in these circumstances it did not matter how long the applicant had worked for the nominator prior to the nomination being withdrawn and that a new nomination application could not meet this requirement. The Tribunal reiterated that it understood the circumstances were difficult, but it was a question of fact as to whether the related nomination application has been approved, and in this case it had not.
At the hearing, the Tribunal also heard from Ms Kirat Kaur, who appeared as a witness for the applicant. Ms Kaur stated that she first met the applicant when he was working in Wonthaggi. Ms Kaur described the applicant as being a very happy person who enjoyed his work and felt appreciated by his work colleagues. She stated that once he was transferred to Leongatha, his demeanour changed and he became anxious, stressed and upset. She stated that he was trying to make things better at work to no avail. Ms Kaur stated that the applicant had a terrible accident on his birthday and this compounded the situation. Ms Kaur stated that he had saved a lot of money and they had planned a future together, but he then had to spend the money on a new car. She stated that his mental health was suffering, and he would break down on a daily basis. She stated that he was unable to find new work due to his visa status and that this this was a very difficult period for them.
Ms Kaur stated that the applicant used to be a very happy person with a good heart but that she is very worried about him following his termination from work and the car accident. She stated that the applicant had done his best to address the written warnings, but they did nothing to support him. She stated that she is hopeful he can come back to Australia as soon as possible so they can settle together.
At the hearing the Tribunal stated that the only discretion it had was whether it referred the matter for Ministerial Intervention under s.351 of the Act and indicated that it would accept submissions on Ministerial Intervention within two weeks of the hearing.
Nomination of a position
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 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.
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 of the Regulations); 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.
In this case, the nomination application nominating the applicant to work in the nominated position and being the nomination in respect of which the applicant made his visa declarations was withdrawn by the nominator on 25 September 2019. This means that the nomination application has not been approved as required by cl.187.233(3). After careful consideration the Tribunal finds that cl.187.233(3) is not met.
Therefore, cl.187.233 is not met.
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.
Ministerial Intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The circumstances which may be unique or exceptional in this case include, relevantly:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).
The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.
The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.
Following the hearing, the applicant has provided a significant volume of information to support a request for Ministerial Intervention, which the Tribunal has considered. This includes the following written submissions and documentary evidence:
a.submission requesting a referral for Ministerial Intervention on the basis that he was unfairly dismissed from work and that he is in a ‘defacto relationship with an Australian citizen’;
b.evidence regarding the applicant’s employment, written warnings and responses and subsequent termination;
c.evidence regarding the applicant’s car accident, including a letter from Road Trauma Support Services dated 29 January 2019;
d.medical certificate from his treating GP dated 13 August 2018;
e.receipts of charitable donations made by the applicant;
f.a copy of the applicant’s ‘Job Ready Workplace Assessment – Motor Mechanic’, from Waverly Toyota signed and dated 20 June 2019;
g.a copy of an email from a work colleague from Leongatha workshop, stating that he could not assist by signing the documents the applicant sent through relating to a potential claim for unfair dismissal so ‘your VISA will be given back’ because it would put his own job in jeopardy;
h.letter of support from his Wonthaggi colleagues; and
i.letter of support from his girlfriend, Ms Kirat Kaur dated 26 June 2020.
The applicant arrived in Australia when he was 17 years old and, until recently, resided in Australia studying and completing over three years of work as a motor mechanic. In his written submission the applicant states that he ‘met every other requirement for the grant of the visa’ and that the circumstances leading to cancellation ‘were all beyond my control’ (applicant’s emphasis). He states further that he was terminated because his manager disliked him, not due to performance, noting that he was well liked and valued in his previous place of employment in Wonthaggi. The applicant states that if he is not granted a visa it would lead to ‘more financial, mental and emotional hardship’ for him, ‘tremendous financial loss’ and would also impact his girlfriend, who is an Australian citizen, and their plans to ‘pursue our life together’. The applicant states that it would also disadvantage the Australian community as ‘I am an active member of the Australian community I [sic] monthly donation to support children in need and organisations that help them’.
The applicant’s girlfriend, Ms Kirat Kaur, has provided a letter of support for the request for Ministerial Intervention, noting that she has known the applicant for more than three years and stating that they have ‘many future plans and goals ahead of us’. In her letter, Ms Kaur describes the character and qualities of the applicant and the impact to his mental health when he moved to Leongatha, consistent with her oral evidence at the hearing. Ms Kaur notes that the outcome of the request for Ministerial Intervention will ‘significantly impact our present and future, more importantly, our dreams of pursuing a life together’.
The Tribunal notes that the applicant has stated that he and Ms Kaur are in a ‘defacto relationship’ but has not provided evidence to that effect. The Tribunal accepts that the applicant is in a relationship with Ms Kaur and that this relationship will be impacted by the outcome of this review. The Tribunal also notes that the applicant has provided letters of support from Australian citizens and permanent residents including the applicant’s girlfriend highlighting his character, involvement and contribution to the local community. However, having considered the information before it, the Tribunal has decided not to exercise its discretion to refer the matter for consideration of Ministerial Intervention on this ground, noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.
The Tribunal has considered whether there are compassionate circumstances regarding the psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant. The Tribunal notes that the applicant has provided details of the impact on his mental health of the treatment he received at his former workplace, including a letter from his treating doctor requesting that consideration be given to the applicant being relocated to Wonthaggi. The Tribunal also notes evidence regarding the impact of the car accident on the applicant’s mental health. However, having considered the information before it, the Tribunal has decided not to exercise its discretion to refer the matter for consideration of Ministerial Intervention on this ground, noting that the circumstances must be unique or exceptional to warrant consideration by the Minister.

The Tribunal has also considered whether the applicant’s circumstances are such that the application of the legislation would lead to an unfair or unreasonable result in this particular case. The Tribunal notes and has carefully considered the evidence submitted to the Tribunal regarding the applicant’s employment and subsequent termination resulting in the withdrawal of the nomination application relating to the applicant. However, having considered the information before it, the Tribunal has decided not to exercise its discretion to refer the matter for consideration of Ministerial Intervention on this ground, noting again that the circumstances must be unique or exceptional to warrant consideration by the Minister.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Phoebe Dunn
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.

[2020] AATA 3075

21 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Appeal

Jurisdiction