Singh (Migration)

[2020] AATA 3710

Singh (Migration) [2020] AATA 3710 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maninder Pal Singh
Ms Sharanjit Kaur
Miss Jaismeen Kaur Sandhu

CASE NUMBER:  1816800

HOME AFFAIRS REFERENCE(S):          BCC2017/2733255

MEMBER:De-Anne Kelly

DATE:6 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 06 July 2020 at 11:29am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Restaurant Manager – no approved nomination – nominator deregistered – decision under review affirmed      

LEGISLATION

Corporations Act 2001, s 601
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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

2. The applicants applied for the visas on 1 August 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 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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas on 28 March 2018 because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination lodged by Kunwar Pty Ltd being the application referred to in cl.187.233(1) was refused by a delegate of the Minister for Home Affairs.

6. The applicant was represented by their registered migration agent Prathap Lakshmanan of Forest Lake, Qld 4078. The migration agent stated on the 28 May 2020 that they no longer represented the applicant but since the applicant did not sign a form authorising a new representative, communication was sent to the agent.

7. The applicants appeared before the Tribunal on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter Miss Jaismeen Kaur Sandhu. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet cl.187.233(3) of the Regulations which provide as follows;

   (3)      The Minister has approved the nomination.

   Nomination of a position

10. 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.

11. 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.

12. After the delegate of the Minister refused the employer nomination, the nominator lodged a review application with the Tribunal on 17 April 2018. The Tribunal found Kunwar Pty Ltd was deregistered on 29 March 2019 and there was no legal entity under s.601 AD (1) of the Corporations Act and therefore it ceased to exist. It followed that there was no longer a person who has standing to apply for, or continue with, an application for review. The Tribunal found it no longer had a valid application for review and had no jurisdiction in the matter. Therefore, the original decision to refuse the employer nomination stood and there was not an approved employer nomination.

13. The Tribunal invited the applicants through their registered migration agent to a hearing on the 12 June 2020. The applicant was advised as follows;

    You are invited to appear by telephone before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. 

    To help slow the spread of COVID-19 (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice.  As we are not holding in-person hearings at the AAT, we are arranging for you to appear by telephone.  We will call you at the specified date and time.

14. On the 25 May 2020, the applicant requested a postponement of the hearing for the following reasons;

    My name is Maninder Pal Singh seeking an extension for my AAT telephonic hearing getting conducted on 12th June 2020. I wanted to state that I would like to submit more favorable information concatenated [sic] to my visa refusal and in this regard, I have already submitted the FOI and I am waiting for the outcome for the same.
    Besides, due to the Covid-19 pandemic, documents could not get sorted in time and I have made the request today only. Please find attached evidence about my claims.

    I would appreciate it if you can consider my genuine request and provide me extension so that I can get my relevant information from the department to make a submission to support my visa matter to not refuse it.

15. The Tribunal agreed to a postponement to 16 June 2020. At each juncture, the applicant requested a face to face hearing which the Tribunal could not offer due to the safety pre-cautions required during the COVID-19 pandemic.

16. On 6 June 2020, the Tribunal received a further postponement request on the same basis that the request was made on the 25 May 2020. The Member considered the request, however, decided a postponement in this instance was not appropriate.

    The Tribunal notes in refusing the postponement request that the related nomination was finalised on 12 February 2020, and therefore it does not need to process that application any further. The Tribunal further notes that you have been able to request access to any documents at any point in the preceding two years since your visa application was refused at the Department in May 2018, and therefore does not consider it appropriate to postpone on these basis alone.

17. Prior to the hearing on the 16 June the applicant advised that his phone connection was not always clear. It was a landline from Beerwah to Brisbane and should have been a sound connection. However, during the hearing the Tribunal ensured that each statement made by the Tribunal was checked for clarity with the applicant. If the applicant was unable to hear because of the poor telephone connection the Tribunal repeated the statement until the interpreter indicated that the applicant had heard and understood the statement. The Tribunal also checked during the hearing that the interpretation was clearly understood, and the applicant responded that it was clearly understood.

18. The Tribunal explained as best it could under s359AA of the Migration Act that the applicant did not have an approved employer nomination for the reasons above. The applicant at first stated it was for the employer to approve his employer nomination but after some explanation appeared to accept that the Tribunal had made the decision on this matter. The Tribunal gave the applicant three options to respond to this concern; the hearing could be adjourned; a written response in could be made in 14 days or the applicant could respond in the hearing, but this would not prevent him making a written submission in 14 days.

19. The applicant stated that he had applied for four employer nominations for various visas and had not been successful but had worked hard and done everything right. He said he had ‘suffered enough’ and needed the visa granted. He asked the Tribunal what he should do now but the Tribunal advised that it is unable to give migration advice and he would need to seek advice from a registered migration agent. He had a 13-year-old daughter who knew no other life except a life in Australia. The applicant’s daughter addressed the Tribunal and said, ‘Give us the visa’. The Tribunal said that it accepted the statements the applicant had made but it was a mandatory requirement that there was an approved employer nomination.

20. Following the hearing, the applicant requested a further hearing for the reasons below;

    My name is Maninderpal Singh. I attend the hearing on today on 16/07/2020 at 1330. During the hearing my wife Sharanjit kaur and my daughter Jaismeen kaur was unable to express their view points due to lack of time of interpreter as he said he have only 5 minutes and he have to go on the other job. Also, the call was disconnected due to some reasons. So, I request for another hearing or if it’s possible to organise a face to face hearing because over the phone it was not very clear.

21. The Tribunal advised that applicant that it did not consider another hearing was required as follows;

    The Tribunal notes your request for a further face to face hearing for your wife and daughter on the basis that the telephone connection was lost and you do not feel your wife and child were able to express themselves appropriately.

    The Tribunal does not agree to conducting a further hearing, as it does not hold the view it is required in the circumstances. As previously communicated to you, the Tribunal is unable to hold face to face hearings in the present Covid-19 pandemic, to ensure the safety of all relevant stakeholders of the Tribunal; applicants and their family, witnesses as well as Tribunal staff and Members.

    Your hearing was set down for one hour,and went for approximately the full duration. You were able to comment and provide further information during the hearing. The Presiding Member advised that you are able to provide additional documents up to fourteen (14) days following the hearing, and this can include further written documents, information or comments from your wife and/or daughter.

    If you have any questions, please contact us immediately at [email protected], or call 1800 228 333.

22. The applicant made a written submission on the 26 June 2020 together with a medical certificate and the results of blood tests. In the submission the applicant explained the difficulties and refusals he had encountered with his previous employer nominations and visa applications and the failure of his skills assessment due to the requirement for an interview. He advised that his family had suffered physically, mentally, socially and financially because of these visa applications. He is stressed and has started drinking alcohol and it has affected his liver. A medical certificate was submitted stating that this was the case. The Tribunal notes that the blood tests also state that the applicant lacks sunshine and has a poor diet. The applicant states that his daughter had been here for six years and cannot speak her mother tongue Punjabi and it will spoil her future and ruin her career if she returns to India. He states that if he and his family have to return to India the Tribunal; his employers and the immigration department will be responsible if something happens to him and his family.

23. The Tribunal accepts that these decisions can have a major impact on the lives of the applicants and their families however it is duty bound to consider the legislation and in this case there is no approved employer nomination to satisfy cl.187.233(3).

24. Therefore, cl.187.233 is not met.

25. 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.

26. Ms Sharanjit Kaur and Miss Jaismeen Kaur Sandhu were secondary applicants who made a combined application with the primary applicant for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa and sought to satisfy cl. 187.311 of Schedule 2 to the Migration Regulations 1994. On the 21 May 2018, a delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the visa application. This clause provides as follows;

    187.311
    The applicant:

    (a)is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)made a combined application with the primary applicant.

27. Ms Sharanjit Kaur and Miss Jaismeen Kaur Sandhu as the secondary applicants, applied as the spouse and child and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) (Regional Sponsored Migration Scheme) visa. Therefore, the primary applicant is not a person who holds a Subclass 187 visa and the secondary applicants are members of the family unit of a person, the primary applicant, who does not hold a Subclass 187 visa. The secondary applicant therefore does not satisfy cl 187.311(a) and do not satisfy cl.187.311.

28. Ms Sharanjit Kaur and Miss Jaismeen Kaur Sandhu do not meet cl.187.331.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    De-Anne Kelly
    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.