Singh (Migration)

[2020] AATA 3487

Singh (Migration) [2020] AATA 3487 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurinder Singh
Mrs Kulvinder Kaur
Miss Jasmanjot Kaur
Miss Dilmanjot Kaur

CASE NUMBER:  1837000

HOME AFFAIRS REFERENCE(S):          BCC2018/2299367

MEMBER:Alison Mercer

DATE:9 July 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 09 July 2020 at 11:49am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Motor Mechanic – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 186.223, 186.233, 186.231; r 1.13

CASES

Hasan v MIBP [2016] FCCA 1049
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Kaur v MIBP [2017] FCCA 564
Khanom v MIBP [2016] FCCA 3259
Singh v MIBP [2016] FCCA 2229
Singh v MIBP [2017] FCAFC 105
Yang v Minister for Immigration and Citizenship [2010] FMCA 890 

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 26 November 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 28 May 2018. 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 (TRT) stream, the Direct Entry (DE) stream, or the Labour Agreement (LA) stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which requires that the applicant is the subject of an approved nomination by his nominating employer. The delegate found that the applicant’s employer, Steve Whittaker, had his nomination of the applicant refused on 27 September 2018. The applicant therefore did not meet the criteria for a subclass 186 visa in the TRT stream, and had not made any claims to meet the criteria for the DE or LA streams. The delegate also refused subclass 186 visas to the second, third and fourth named applicants (the applicant’s wife and children) on the basis that they did not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 17 December 2018, which was accompanied by a copy of the delegate’s decision, and an authority by which they appointed a registered migration agent, Ms Tanvi Dutt, to be their representative and authorised recipient for correspondence.

7. On 10 February 2020, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 24 March 2020.

8. On 23 March 2020, the Tribunal wrote again to the applicants via their agent to advise them that due to the COVID19 pandemic, the hearing scheduled for 24 March 2020 had been postponed, and would be rescheduled, subject to their response or comments on information that the Tribunal was about to put to them pursuant to s.359A of the Act. The Tribunal advised the applicants that the applicant’s nominating employer, Steve Whittaker, had his nomination of the applicant refused by the Department on 27 September 2018, and there was no record of Mr Whittaker having applied to the Tribunal for review of the nomination refusal decision. The Tribunal further advised that this indicated that the applicant was not the subject of an approved nomination by his original employer, and that if it found this, then it would have to find that the applicant did not meet cl.186.223, and this would be the reason to affirm the decision to refuse him a subclass 186 visa. The Tribunal requested that the applicants provide comments or response by 6 April 2020, noting that they could seek an extension of time to respond, but should do so by 6 April 2020. The Tribunal further advised that if the applicants did not respond or comment by 6 April 2020 (or by an extended date, if approved), then they would lose their entitlement to a hearing, and that the Tribunal might proceed to make its decision on the available evidence.

9. On 6 April 2020, the Tribunal received an email from the applicant, in which he advised that he was supposed to submit some documents on this date but because of the Coronavirus crisis and a house eviction and having to move to new house, he was not able to submit these documents and could not arrange a representative to represent him. He stated that he was therefore requesting a 4 week time extension so he could arrange documents and a new representative.

10. On 7 April 2020, the Tribunal wrote to the applicants via the agent to grant an extension of time to respond to 4 May 2020.

11. On 1 May 2020, the Tribunal received a further request from the applicant for an extension of time to respond to the s.359A letter. The request was made by email on behalf of the applicant by an officer of the Ravenhall Corrections Centre, and attached a scanned, handwritten letter from the applicant stating that he had been arrested on 11 April 2020 and was due in court on 6 July 2020. He stated that he therefore could not provide the documents he had been requested to provide by the Tribunal by 4 May 2020.

12. On 4 May 2020, the Tribunal wrote to the applicants via their agent to advise that an extension of time was granted to 25 May 2020.

13. On the same date, the Tribunal received an email sent on behalf of the applicant by an officer at the Ravenhall Corrections Centre, attaching a scanned handwritten letter from the applicant advising that his migration agent no longer represented him and requesting that Tribunal correspondence be sent to him at the Corrections Centre.

14. On 18 May 2020, the Tribunal received an email sent on behalf of the applicant by an officer at the Ravenhall Corrections Centre, attaching a scanned letter from the applicant advising that he had appointed Joel McComber of Sentry Law to act on his behalf on a limited basis to attempt to extend the timeframe for the provision of documents, but that he was not able to afford to instruct Mr McComber to act on his behalf in relation to the whole of his application for review. He stated that in those circumstances, he authorised Mr McComber to communicate with the Tribunal for the purpose of extending the time to provide the documents required by the Tribunal, and to communicate with the Tribunal in relation to that extension of time, but not in relation to any other aspect of his application.

15. On the same date, the Tribunal received an email from Mr McComber attaching an authority to act (limited to seeking an extension of time to respond to the s.359A letter) and stating that due to the applicant’s current incarceration and lack of representation, he would be unable to provide the Tribunal with any documents within the time required. Mr McComber confirmed that the applicant had provided his firm with limited instructions to seek an extension of time to provide the documents sought by the Tribunal, but that he and his firm were not instructed to act on the applicant’s behalf in relation to his application generally. Mr McComber requested that the Tribunal provide any correspondence sent to the applicant’s previous agent since 1 January 2020, and to confirm whether an extension of time had been granted.

16. On 18 May 2020, a Tribunal officer rang Mr McComber on the instructions of the Presiding Member to advise that an expanded authority and s.362A form would be required in order to release the Tribunal correspondence on the applicant’s file, as it fell outside the scope of the limited authority provided by the applicant.  On 21 May 2020, the Tribunal officer spoke with Mr McComber by telephone and advised, on the instructions of the Presiding Member, that:

    ·the Tribunal accepted that he was representing the applicant on a limited basis;

    ·if he was requesting access to correspondence on the applicant’s file, this would be outside the scope of the limited basis on which the applicant had appointed him;

    ·therefore, if he wished to have access to correspondence on the file, the applicant would need to send to the Tribunal in writing an extension of his authority to act on the applicant's behalf, which included requesting access to documents on the file;

    ·Mr McComber said that he thought there may be a misunderstanding, as the applicant thought that he was being requested to provide information, and that the applicant did not have a copy of the invitation letter due to his previous agent not passing on correspondence to him; 

    ·he was advised that the letter sent to the applicant via his previous agent was a s.359A invitation to comment on or respond to information, and not a request for documents. He was further advised that currently, the notification method for the applicant was post to the Ravenhall Correctional Centre; and

    ·Mr McComber asked if he could get a copy of that letter so that he can read it and also provide it to the applicant. He was advised by the Tribunal Officer that this request would be passed on to the Member. Mr McComber advised that in the meantime, he would contact the applicant via Ravenhall Corrections Centre to seek an updated authority just in case it is required.
    
    
    

17. On 18 June 2020, the Tribunal wrote to the applicant via Mr McComber (based on the authority provided on 18 May 2020, which the Tribunal considered, when combined with the contact details provided in Mr McComber’s email, met the requirements to appoint an authorised recipient for correspondence in writing under s.379G(1)) to note that it had not received the expanded authority and s.362A form, which it required in order to release the requested correspondence from the applicant’s file to him.  It further advised that it had an extension of time to 25 June 2020 to respond or comment on the information in the s.359A letter (that being that the applicant appeared not to meet cl.186.223 or 186.233 as he was not the subject of an approved nomination, and that these clauses could not be satisfied by a new nomination. The Tribunal reiterated that failure to respond or provide comments by the due date would result in the loss of the right to a hearing.

18. The Tribunal did not receive any response or comments from the applicants or Mr McComber by the due date.  It has received no further correspondence or communication to date.

19. The Tribunal is satisfied that its s.359A letter and subsequent correspondence was sent by email to the correct address nominated by the applicant at the relevant times.

20. The applicants have not responded to the Tribunal’s s.359A letter by the extended due date. In the circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v Minister for Immigration and Citizenship [2010] FMCA 890; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. In the circumstances set out above – where there no evidence that the applicant has the required approved nomination and where the applicants have had the assistance of a registered migration agent but did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain their comments on or response to the information set out in the Tribunal’s letter of 23 March 2020.

21. 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

22. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

23. In addition, this criterion also requires that:

    ·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.

24. It is not disputed that in this case, Steve Whittaker lodged a nomination of the applicant, but it was refused by the Department on 27 September 2018.  No review application was lodged by that employer with the Tribunal, as identified in the Tribunal’s s.359A letter.

25. The Tribunal therefore finds that the applicant is not the subject of an approved nomination by Steve Whittaker.

26. It is a requirement for the Direct Entry stream (cl.186.223) 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 Department policy - Permanent Employer Sponsored Entry- ENS and RSMS Visa applications – Subclasses 186/187 – [3.4.2] – position must be that for which the visa application was made (issued on 18 August 2018)

27. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). 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.

28. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.187.233 (as applicable) unless there is also a review of that decision pending.  

29. Accordingly, the Tribunal must find that cl.186.223 is not met. This means that the applicant does not meet the criteria for a subclass 186 visa.

30. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

31. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants subclass 186 visas, as it finds that they do not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to suggest that they meet the primary visa criteria in theri own right.

    DECISION

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

    Alison Mercer
    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.