Singh (Migration)

[2019] AATA 5068

Singh (Migration) [2019] AATA 5068 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parbhdeep Singh

CASE NUMBER:  1914562

HOME AFFAIRS REFERENCE(S):           BCC2017/3198791

MEMBER:Jennifer Cripps Watts

DATE:6 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 November 2019 at 1:23pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – first postponement request granted – second and third postponement request declined – adequacy of medical evidence – Direct Entry stream – subject of an approved nomination – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 (the delegate) to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 September 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. In the present case, the applicant is seeking the visa in the Direct Entry stream.

4. The visa was refused on 22 May 2019.  On 7 June 2019, the applicant lodged a review application. 

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because in April 2019 the nominator withdrew the nomination for the applicant, Parbhdeep Singh.

6. The applicant requested postponement of his hearing on three occasions.  On the first occasion it was granted, on the second two occasions, the Tribunal did not grant the postponement requests.  He did not attend his scheduled hearing in person, or by phone, as he had been invited to do.

7. On 30 August 2019, the applicant was invited, in writing, to attend a Tribunal hearing scheduled on 2 October 2019.  On 29 September 2019, the applicant requested a postponement of the hearing, it was granted and a new hearing invitation sent for a adjourned hearing on 6 November 2019.  In the invitation, the applicant was asked to return the ‘response to the hearing invitation’ form within seven days of receipt indicating whether he would attend and if he needed an interpreter.  He did not return the form but twice requested postponement, the day before the hearing and on the day of the hearing.

8. At 12:59pm, the day before the adjourned hearing, the applicant requested a postponement by email on the basis that he claimed he would be too sick to attend the hearing on 6 November 2019 and also he needed time to speak to his lawyer.  A medical certificate was provided by him, dated 4 November 2019, that stated, essentially, that the applicant was not fit for work on 4 and 5 November 2019.  The postponement request was considered and the applicant was sent a letter explaining in detail why the postponement was not granted.  He was informed that he could attend the scheduled hearing by phone and asked to provide the Tribunal with a reliable number he could be called on to give his oral evidence.  The reason the Tribunal specifically asked for a number for him, which was explained to the applicant in the Tribunal’s letter sent on 5 November 2019, is because SMS hearing reminders that had been sent to the mobile number he had previously provided, and which is the only one in the Tribunal system, were returned as ‘delivery failed’.  He was reminded that if he did not attend the hearing the Tribunal may make a decision in his matter without further notice or dismiss the matter. 

9. At 8:02am on the day of the scheduled hearing, 6 November 2019 (a date which the medical certificate did not cover), the applicant again requested postponement because he said he was sick, but without providing a medical certificate.  He said that he would try to get one.  Although it had been requested, the applicant did not provide an alternative phone number he could be contacted on. 

10. After receiving the postponement request, a Tribunal officer called the applicant on the mobile number provided with the review application on the morning of the 6 November 2019 hearing at 8:48am to inform the applicant, at the request of the member, that his third hearing postponement request had not been granted.  The Tribunal officer reported that the number ‘rang out’ without being answered.  In the alternative an email was sent in response to the applicant’s email he sent at 8:02am.  The Tribunal’s response email was sent at 8:54am and said:

    ‘The Tribunal Member wishes to inform you that they will not postpone the hearing this morning. You have been invited to attend by phone and asked to provide a number you can be called on. The Tribunal has tried to send messages to 0458771462 and I called that number again this morning but it went to voicemail. The Tribunal will be trying to call you around 9:00am. If you do not attend, the Tribunal may make a decision without contacting you again or may dismiss the matter, as you have been advised already.’   

11. The applicant has been informed by the Tribunal, in writing, in a hearing invitation sent to him on 30 August 2019, a second hearing invitation sent to him on 1 October 2019 granting a postponement request, in an email sent to him on 5 November 2019 and the email above sent to him on 6 November 2019, that if he does not attend his scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear, or his review application may be dismissed. 

12. As the applicant had been informed twice that postponement of the 6 November 2019 hearing was not granted and the hearing would go ahead and he would be contacted to give his evidence by phone, the registry set up for the hearing and rang the applicant on his mobile at around 9:10am.  A hearing officer noted that they rang the applicant’s mobile phone number of record, that he provided, three times from around 9:10 to 9:15 and on each occasion the call went unanswered.  On the occasions when the applicant was called on the morning of 6 November 2019, his phone rang.  This indicates to the Tribunal that it was working but simply went unanswered, even though the applicant was on notice he would be called on the number.

13. At 9:30am the hearing officer informed the Tribunal, for the record, that the applicant had not attended for his hearing.  The member instructed that it be recorded that the applicant was a ‘no show’.

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

    Postponement request made by the applicant the day before the scheduled hearing

15. As noted above, at lunchtime on 5 November, the applicant requested by email postponement of his 6 November 2019 hearing.  A written response was sent to him as a matter of urgency, as soon as the member received it and had considered the request and reasons given together with the medical certificate, at around 3:10pm on 5 November 2019.  It was a detailed response giving clear reasons why the postponement was not granted and inviting the applicant to attend by phone.  The relevant information is extracted from that letter as follows:

    ‘This afternoon the Tribunal received a request for postponement of your scheduled hearing, at 9:00am on Wednesday 6 November 2019. You have, with the request, attached a copy of a letter entitled ‘Medical Certificate’, signed by Dr Andrea Laylo MBBS, 2761707J, which says:

    ‘This is to certify that Mr Parbhdeep Singh is unable to work from 4/11/2019 to 5/11/2019 inclusive due to a medical condition.’

    You say that you are sick and cannot attend your hearing tomorrow because you were already sick when returning from a trip to India to visit your sick grandfather and you experienced an extended layover in China on 2 November 2019. You have requested that the Tribunal give you a 4 week extension because your ‘doctor suggested me to take proper rest for few days to recover so I can make all the arrangements for my hearing.’ You say you need time to make an appointment with your lawyer.

    Your Subclass 187 visa was refused on 22 May 2019 because, essentially, your sponsor withdrew their nomination in April 2019 and, for that reason, you were informed by the Department that you could not meet the primary criteria for the grant

    of the visa.  The Tribunal initially scheduled a hearing for you at 10:00am on 2 October 2019.

    Your request for postponement has been considered:

    1. The hearing is scheduled on 6 November 2019 and your medical certificate states that you are unfit for work on 4 and 5 November 2019. The Tribunal does not accept that you will be unfit for work on 6 November 2019.

    2. You say that your doctor recommended you rest so you can make arrangements for your hearing. However, the doctor does not include in the medical certificate that you are unfit to attend a Tribunal hearing or that you require extended rest of up to four weeks so you can be fit to attend a Tribunal hearing. The doctor gives no history of illness or any basis on which the assessment that you are unfit for work was made, for example if any physical or other examination of you was carried out by the doctor when you visited the surgery. In the circumstances, the Tribunal concludes that it is likely you self reported your symptoms and, while not disputing the doctor’s qualifications, the Tribunal does not consider the medical certificate to be reliable evidence that you cannot attend your Tribunal hearing on 6 November 2019 or that you could not have sought migration advice over the last two days since you returned from India.

    3. The Tribunal sent you a letter on 19 September 2019 informing you of adverse information, that being that your sponsor had withdrawn their nomination for you and that this means you cannot meet the criteria for the grant of the Subclass 187 visa that was refused, specifically cl.187.223. Your comment or response was due on 2 October 2019.

    4. On 29 September 2019 you advised the Tribunal that you were overseas. You booked a ticket to India on 29 August 2019 and, on 1 September 2019, you departed Australia on a return bridging visa. You requested an extension of four weeks so you could seek migration advice and the Tribunal postponed your hearing to 6 November 2019, effectively granting you an additional five weeks to comment on or respond to the adverse information, or seek migration advice if that was your intention. You have not provided any comments in that time addressing the adverse information, despite having been given more than a reasonable amount time to do so. There is no indication you have appointed a migration agent at any time since you lodged your review application.

    The Tribunal does not accept that you could not have sought advice while in India, by email or phone or other means relating to your review application. Your visa was refused in May 2019 and you have had ample time to make arrangements to provide additional documents and information to the Tribunal, including getting migration advice and commenting on or responding to adverse information that was sent to you in September 2019.

    If you feel you cannot attend the hearing on 6 November 2019 in person, you may attend by phone. In the hearing invitations that have been sent to you, you are reminded that if you do not attend your hearing that a decision on the review may be made without us taking any further action to allow or enable you to appear or your application may be dismissed. Please refer to your most recent hearing invitation for details.

    The Tribunal has considered your postponement request, the documents provided and your claims as to why you say you cannot attend the hearing. The postponement is not granted and the hearing will proceed as scheduled, at 9:00am on Wednesday 6 November 2019.  The SMS hearing reminders that were sent to the mobile number you provided with your application, 0458771462, have all failed. If you wish to attend your scheduled hearing by phone, please provide us with a reliable number you can be reached on.’

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant has an approved nomination, by J Aringo and P Ross in the nominated position, that has not been withdrawn:  r.187.233(4).

17. On 18 September 2019, the applicant was sent a letter containing adverse information, which included the following information:

    ‘In your Subclass 187 visa application, you identified the company nominating you as J Aringo & P Ross.  The nomination relating to your visa application was withdrawn and you were advised of this by the Department, in writing, on 16 April 2019.

    For the grant of a Subclass 187 visa, you must meet cl.187.233 which requires, among other things, that you are the subject of an approved nomination or nomination refusal on review.  It does not appear that you are the subject of an approved nomination or a refused nomination on review and, if this is the case, you will not be able to meet the primary criteria for the grant of the visa.’

18. In the s.359A letter the applicant was invited to comment on or respond to the information, by 2 October 2019 (the day of the scheduled hearing), and informed that subject to his comments or response this would be the reason, or a part of the reason, for affirming the decision under review.  He was advised that he could ask for an extension of time in which to provide the comments or response before 2 October 2019, giving a reason and, if he did so, the request would be carefully considered.  In bold type, the applicant was informed that if he did not comment or respond within the period allowed or as extended, a decision may be made without the Tribunal taking any further action to obtain his views on the information.  He responded within time asking for a postponement of his hearing which was granted.

19. The Tribunal is satisfied that the applicant is aware that he has no nomination relating to his Subclass 187 visa refusal on review and that he cannot meet the primary criteria for the grant of the visa.  The Tribunal is also satisfied that the applicant has been given ample and reasonable opportunities to provide additional evidence, either documents or oral evidence.  the applicant has made written requests for postponements, but otherwise has provided no information relating to the issue on the review.  He provided unsatisfactory evidence of any medical reason why he could not attend and meaningfully participate in his scheduled hearing on 6 November 2019 in person or by phone.  He was able to send emails and the Tribunal considers it reasonable that if he could send emails he could have engaged in a phone call to give his evidence, which he was invited to do, but elected not to by not responding to requests to provide a reliable phone number or answering calls made to him on the phone number he provided with his review application. 

20. At the time the applicant made the review application in 2019, the nomination relating to his Subclass 187 visa application had been withdrawn.  While it is possible the applicant may have been confused or unaware that without the nomination by the company in the position indicated in his visa application he could not meet the criteria for the grant of the visa at the time he made the review application, the Tribunal is satisfied he is well aware of it at the time of this decision and, based on the contents of the s.359A letter sent on 19 September 2019, he has been aware that he cannot meet the primary criteria for the grant of the visa since at least that date.  He responded to the s.359A letter relating to this adverse information by requesting a postponement or extension of time to respond or comment, but did not provide any comment on the adverse information.

21. In the request for postponement received on the morning of the scheduled hearing, 6 November 2019, the applicant informed the Tribunal in his email that he ‘will try to see the doctor today in the afternoon or in the evening and send you my medical certificate’.  The Tribunal has not accepted the applicant’s first medical certificate.  It gave no opinion as to the applicant’s fitness to attend and meaningfully give evidence at his Tribunal hearing on 6 November 2019.  It said he was unfit for work on 4 and 5 November 2019 because of a ‘medical condition’, which was the two days preceding, not the day of, the scheduled hearing.  In the 4 November 2019 medical certificate the ‘medical condition’ is unspecified.  There was no mention of any examination of the applicant/patient or of any prescribed or recommended medication or modification to behaviour consistent with his later claim to be suffering from nausea and diarrhoea. The applicant, when he requesting the postponement on the morning of the scheduled hearing provided no evidence that he had seen the same doctor again, or any doctor, and he did not provide a medical certificate and appeared not to have one at the time as he claimed he would try to see a doctor later in the day.  His claim of illness on the morning of the scheduled hearing, without written meaningful corroboration from a medical practitioner at the time the postponement was requested, was given no weight in the circumstances. 

22. At the time of this decision, the medical certificate that was provided is considered by the Tribunal to have been inadequate, both because it given insufficient meaningful details of the medical condition and why it would prevent the applicant from attending the Tribunal hearing and, in any event, did not cover the date of the hearing. 

    Nomination of a position

23. 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.

24. Relevant to this review, the criterion includes that the nomination has been approved and has not been subsequently withdrawn:  cl.187.233(4).  The relevant nomination, by J Aringo & P Ross, was withdrawn on 16 April 2019.

25. As already mentioned, on 18 September 2019, the Tribunal invited the applicant to comment on or respond to adverse information, specifically that the approved nomination had been withdrawn and withdrawal of the nomination would mean he could not meet the criteria for the grant of the visa.   

26. No comment addressing the adverse information has been received by the Tribunal, either in writing, or in oral arguments at a hearing, as the applicant did not attend his hearing. 

27. Therefore, cl.187.233 is not met.

28. 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.

    DECISION

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

   Jennifer Cripps Watts
   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.