Sinhalage (Migration)

[2020] AATA 4116

Sinhalage (Migration) [2020] AATA 4116 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thushara Wasantha Piyasena Sinhalage

CASE NUMBER:  1924477

HOME AFFAIRS REFERENCE(S):          BCC2018/2786290

MEMBER:Alison Mercer

DATE:15 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 15 September 2020 at 12:38pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Carpenter –nomination refused–no jurisdiction to review nomination refusal decision – company was deregistered – Ministerial intervention referral request –not the subject of an approved nomination–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351,359,
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

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 12 August 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 July 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 stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Carpenter.

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 required him to be the subject of an approved employer nomination. The delegate noted that the nomination of the applicant made by his employer, Sightway Constructions Pty Ltd, was refused by the Department on 25 June 2019 and he had not made any claims against the Direct Entry or Labour Agreement streams.

6. The Tribunal received a review application from the applicant on 2 September 2019, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Noeline Smart, to be his representative and authorised recipient for correspondence.

7. On 3 June 2020, the Tribunal wrote to the applicant to invite him to attend a hearing via teleconference (due to COVID19 pandemic social distancing restrictions) on 22 June 2020. In the hearing invitation, the Tribunal noted that the applicant’s subclass 186 visa application made in the Temporary Residence Transition (TRT) stream was refused because the applicant did not have an approved nomination by his Australian employer and thus did not meet cl.186.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Tribunal further noted that it appeared that the applicant could not satisfy cl.186.223(2), as a new nomination made by another employer (or a new nomination made by his original employer) could not satisfy that provision. The Tribunal further noted that if the applicant did not meet cl.186.223, the Tribunal would have to affirm the decision to refuse to grant him a subclass 186 visa.

8. On 11 June 2020, the applicant’s agent advised of an updated telephone number for the applicant for the hearing.  On 15 June 2020, the applicant’s agent emailed the Tribunal again to advise that she was instructed by the applicant that he no longer wishes to attend a telephone hearing but requested that the matter be scheduled for a face to face hearing. She noted that she understood that this may only be possible once the current restrictions are eased, and asked the Tribunal to confirm its position in this regard.

9. On 18 June 2020, the applicant’s agent emailed the Tribunal to submit that a telephone hearing in this matter could be highly prejudicial to her client's case. The agent submitted that the Tribunal's role in application for review was to conduct a hearing de novo and to provide an opportunity to respond to matters pertinent to the applicant's case. She stated that the applicant had become aware of other matters which were previously scheduled for telephone hearings that were now being postponed to provide this opportunity, once the matter were raised with the Tribunal. She further stated that the applicant was concerned that the Tribunal's refusal to provide a face to face hearing was an indication of the Tribunal's bias in this case which could lead to a jurisdictional error. The agent therefore urged the Tribunal to revisit its decision to refuse the applicant's request for a face to face hearing.

10. On 18 June 2020, the Tribunal responded to the applicant’s agent via email to advise that the Presiding Member had noted the concerns raised and the request for the hearing to be rescheduled when a face to face hearing could be held, but declined to do so. The Tribunal drew the attention of the applicant and his agent to section 6 of the COVID19 Special Measures Practice Direction – Migration and Refugee Division, issued by the AAT President on 27 April 2020, which remained current, and which clearly stated that the Tribunal was not conducting face to face hearings from 29 April 2020 and was instead conducting hearings by telephone or video, unless there were exceptional circumstances. The Tribunal noted that the applicant and his agent had not identified any exceptional circumstances. It further noted that Tribunal Members, applicants and practitioners were required to follow this Practice Direction, and that the Presiding Member could not comment on decisions that may have been made by other Tribunal Members in other cases, but had assessed the applicant’s postponement request by reference to the particular circumstances of his case, one of which was the confined legal nature of the issue in dispute. The Tribunal further noted that it did not consider that identifying the criterion in dispute (cl.186.223(2) for which there was no discretion to waive its requirements) or holding a hearing by telephone or video was an indication of bias on the part of the Tribunal.  Finally, the Tribunal advised that if the applicant preferred a video hearing to a telephone one, they should advise the Tribunal as soon as possible so that this could be scheduled.

11. In response, on the same date, the applicant and his agent responded to advise that the applicant preferred to have a video hearing. On 19 June 2020, the Tribunal confirmed to them that it would advise of a new hearing date as soon as possible.

12. On 6 July 2020, the Tribunal wrote to the applicant via his agent to invite him to attend a video hearing on 28 July 2020. The Tribunal also noted that it was the legal view of the Tribunal was that cl.186.223 could not be met by a nomination lodged after 18 March 2018, and that there was no discretion within the Regulations or Act to waive this requirement.

13. On 10 July 2020, the applicant’s agent advised that she and the applicant would attend the video hearing on 28 July 2020.

14. On 21 July 2020, the applicant sent an email to the Tribunal stating that, unfortunately due to the lockdown and increasing numbers of viruses, especially around the Melbourne city area, he felt that to attend the hearing on 28 July 2020 would be very risky. He requested that the hearing be postponed if possible.

15. On 22 July 2020, the Tribunal sent an email to the applicant and his agent advising him that the Presiding Member had considered the applicant’s hearing postponement request but declined to reschedule the hearing, as it was to take place by videoconference, and the applicant’s agent had previously advised the Tribunal that she would arrange for the applicant to be with her for the video hearing. The Tribunal noted that if it was no longer the case that the applicant would be with the applicant for the scheduled video hearing, the applicant should advise the Tribunal as soon as possible in order to ensure that he had technical capacity to participate in this manner. Alternatively, the Tribunal indicated that the applicant could participate by telephone if he cannot participate by videoconference, as per the Tribunal’s current Directions for Hearings during the COVID-19 pandemic, as currently, the Tribunal was not able to conduct face to face hearings and there was no clear date on which it would be able to resume doing so.  The Tribunal noted that if the applicant did not attend the hearing on 28 July 2020, the Tribunal might dismiss his review application or make a decision on the available evidence.

16. The applicant and his agent advised the Tribunal that they would participate by telephone as the applicant did not have the technical capacity to participate in a hearing by video.

17. The applicant appeared before the Tribunal via telephone on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral submissions via telephone from the applicant’s agent.  The Tribunal and the applicant were assisted by the services of an interpreter in the English and Sinhala languages, who also participated by telephone.  The Tribunal exercised its discretion to hold the hearing by telephone as 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

18. The applicant and his agent confirmed that they understood that the applicant’s visa had been refused due to the refusal of the applicant’s employer’s nomination of him. They indicated that Sightways Construction Pty Ltd (Sightways) was a viable company when the applicant was first employed and sponsored on a subclass 457 visa, and continued to be throughout the period that the subclass 186 nomination and visa application were lodged and refused. The applicant’s agent advised that the nomination was originally refused because the Department had concerns about the applicant’s terms and conditions of employment and whether Sightways had the financial capacity to employ the applicant for 2 years on a full time basis. At that stage, Sightways was still actively operating, but after it lodged an application for review with the Tribunal (differently constituted) in relation to the nomination refusal, it became involved with a significant legal dispute with a client and the owner declared bankruptcy. The agent advised that the company was then deregistered, which resulted in the Tribunal finding that it no longer had jurisdiction to review the company’s nomination refusal decision. The applicant and the agent conceded that, therefore, there was no approved nomination of the applicant by Sightways, and the applicant could not meet cl.186.223.

19. In response to the Tribunal’s query, the applicant said that after his visa refusal, he continued to work for the owner of Sightways as a subcontractor on a casual basis. He explained that his work had reduced as a result of a downturn caused by the COVID19 pandemic restrictions but he was still working enough to meet his rental and living expenses. The applicant indicated that because Sightways’ owner had been declared bankrupt, he could not take the applicant on as the employee of a new business. 

20. The applicant told the Tribunal that he had been in Australia since 2008, having originally come as a student to undertake a commercial cookery course, but then swapped to a carpentry course as he did not enjoy the cookery course. After completion of his course, he had been employed by Sightways and granted a subclass 457 temporary work visa on that basis, and had then applied for the subclass 186 visa, and continued working for Sightways while holding a bridging visa, until it ceased. Even after that, he had continued to work for Sightworks’ owner on a casual basis. The applicant confirmed that his parents and sister remain in Sri Lanka and he is the only member of the family in Australia. He told the Tribunal that given the amount of time he had lived in Australia, it would be very difficult for him to re-establish himself in Sri Lanka.

21. The applicant’s agent submitted that her instructions were to ask the Tribunal to consider referring the applicant’s case for Ministerial intervention pursuant to s.351 of the Act, based on the fact that he did not have a nomination for his subclass 186 visa application for reasons outside his control, he had worked loyally for his nominating employer while holding a subclass 457 visa and bridging visa, and had lived, studied, worked and paid taxes in Australia for 12 years. The Tribunal undertook to consider referring the matter but did not guarantee that it would. It also noted that even if it were to do so, it would still be up to the current Minister to determine whether he would intervene personally or not. The Tribunal also indicated that it would defer making a decision in the applicant’s case for 2 weeks to enable the applicant to consult his agent about making any further submissions following the hearing, in recognition of the fact that there was a part of the hearing during which the interpreter’s telephone line had dropped out (as a result of which the Tribunal had summarised to the applicant, using the interpreter when he resumed his participation in the hearing, what his agent’s submissions were).

22. Following the hearing, the Tribunal received copies of the applicant’s PAYG summary statements for 2014/15 and 2015/16 as proof of his employment.

23. 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

24. 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.

25. 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.

26. As set out in the delegate’s decision (a copy of which was provided to the Tribunal with the review application), the nomination of the applicant for a subclass 186 visa made by the applicant’s employer, Sightways Construction Pty Ltd, was refused by the Department on 25 June 2019. As advised by the applicant and his agent at the hearing, the employer did seek review of that decision, but the Tribunal (differently constituted) found that it had no jurisdiction to review that decision after Sightways was deregistered.

27. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination. Under the circumstances, the Tribunal must find that the applicant does not meet cl.186.223(2) or (3) and thus does not meet cl.186.223 as a whole.

28. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if he were, the Tribunal’s view is that this would not satisfy cl.186.223. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (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.

29. The Tribunal considers that, although the Court's comments were strictly obiter, they are nonetheless persuasive in relation to subclass 186 visas. As the relevant subclass 186 criteria are in the same terms, the Court's reasoning is also applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is withdrawn, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable).

30. Moreover, this view is consistent with the view taken in another decision, Kaur v Minister for Immigration and Border Protection [2017] FCCA 564, in which the Court cited with approval the previous case of Hasan v Minister for Border Protection [2016] FCCA 1049, to the effect that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination, even if the later nomination were made by the same employer in relation to the same position as the nomination made at the time of the visa application.

31. In addition, the Tribunal notes that legislative changes took place on 18 March 2018 which also affect this case. On that date, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018 came into effect. Although mainly concerned with repealing the previous subclass 457 (Temporary Visa) program and its associated nominations, the Regulation also introduced amendments affecting the subclass 186 and 187 program. This is because it repealed the old r.5.19 and replaced it with a new version. While a pre-18 March 2018 nomination (if approved) can support a subclass 186 or 187 visa, the reverse is not true: that is, a post-18 March 2018 nomination cannot satisfy cl.186.233 in relation to a subclass 186 visa application made prior to 18 March 2018, as is the case here.

32. Therefore, the Tribunal must find that cl.186.223 is not met.

33. 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 decisions under review must be affirmed.

    Ministerial Intervention

1. The Tribunal notes that the applicant has asked the Tribunal to consider referring his case for consideration by the Minister for Immigration pursuant to s.351 of the Act. This section confers a non-compellable, personal discretion on the Minister to grant a person a visa after their review application with the Tribunal is unsuccessful.

2. The current guidelines for Ministerial intervention are set out on the Department’s website:

   >

   They provide the following non-exhaustive examples of the types of unique and exceptional circumstances that can be brought to the Minister’s attention: 

   ·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 an applicant’s age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship;

   ·exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia;

   ·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 an applicant’s case; and/or

   ·where an applicant cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.

3. There is also a list of factors relating to cases where it would be inappropriate to refer them to the Minister.

4. The Tribunal is mindful of the fact that the applicant was nominated in the Regional Sponsored Migration Scheme (RSMS) Temporary Residence Transition (TRT) stream, the purpose of which is to provide permanent residence for existing sponsored temporary visa holders who continue to be needed by, and work for, their Australian employers. The Tribunal acknowledges that the TRT stream is a pathway to permanent residence for sponsored temporary visa holders, but notes that it is not a guaranteed pathway, and that permanent residence depends on the sponsoring Australian employer continuing to have a stated need to employ the temporary visa holder.

5. In this case, the applicant’s sponsoring and nominating employer is no longer in a position to continue its nomination of the applicant. Nevertheless, it is not disputed that he had worked for them for several years and their decision not to continue with his nomination was outside the applicant’s control. The Tribunal also notes that the applicant has resided in Australia as a student, and then as a sponsored employee, since 2008. The Tribunal has sympathy for these circumstances.

6. However, it is not satisfied that these factors alone are sufficient to fall within 1 or more of the guidelines set out above, or are otherwise unique, as there is insufficient evidence before the Tribunal to establish that. It therefore declines to refer the matter to the Minister but notes that it remains open to the applicant and his agent to do so themselves, if they believe that the applicant’s circumstances fall within the Ministerial guidelines or are otherwise unique and/or compelling.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

   Alison Mercer

   
   

   Member

   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.