Sircowr (Migration)

[2021] AATA 1967

Sircowr (Migration) [2021] AATA 1967 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss  Sircowr
Mr Waqar Ali

CASE NUMBER:  1908627

HOME AFFAIRS REFERENCE(S):          BCC2017/2966844

MEMBER:Mary Sheargold

DATE:10 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2021 at 9:39am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – applicant’s dispute with sponsor – employment ceased – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19; Schedule 2, cls 187.233, 187.311

CASES

Singh v MIBP [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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 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 (Cth) (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 the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by West Fuel Pty Ltd for the position of Cook was not approved.

6. This application was listed for hearing by telephone on 26 March 2021 at 10:00am AEDT/7:00am WST.  The first named applicant wrote to the Tribunal on 22 March 2021 to confirm that she would be working in her current occupation working as a Chef on a mine site in remote Western Australia and would be unable to attend the hearing due to poor telephone reception at her workplace.  The Tribunal relisted her application for hearing by telephone at 3:00pm AEDT/12:00pm WST on 1 April 2021.  The applicants did not attend the hearing at the scheduled date and time and so the Tribunal proceeded to dismiss the application at 4:10pm AEDT on 1 April 2021.

7. The applicants applied for reinstatement of the application on 12 April 2021.  The first named applicant stated that she had been delayed leaving Perth airport after her arrival home from her work on the mine site, and that she had not left the airport until approximately 1:00pm WST on 1 April 2021.  The Tribunal considered it reasonable to reinstate the application because the applicants would not have been able to participate in the telephone hearing with an adequate degree of privacy had the first named applicant accepted the Tribunal’s telephone calls whilst she was in the airport in Perth.

8. Accordingly, the Tribunal relisted the application to be heard by telephone at 11:30am AEST/9:30am WST on 20 April 2021. At 12:27am AEST on 20 April 2021, the first named applicant requested a further postponement of the hearing on the basis that she had a medical appointment at the same time the hearing was scheduled, and that this appointment related to a workplace injury to her shoulder.  She provided evidence in respect of the injury.  The Tribunal accepted the first named applicant’s evidence and rescheduled the hearing for 7 May 2021.

9. The first named applicant appeared before the Tribunal by telephone link on 7 May 2021 to give evidence and present arguments.  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 Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

12. 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.

13. 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 reg 1.13A and reg 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.

14. On 19 February 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook by West Fuel Pty Ltd in respect of the first named applicant had been refused by a delegate of the Minister of Immigration, and that the Tribunal had found it had no jurisdiction to review the delegate’s decision.  The letter outlined that this information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 9 March 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. On 8 March 2021, the first named applicant wrote to the Tribunal and stated that she acknowledged that the nomination application had been refused, but still wished to attend a hearing.

17. At the hearing, the first named applicant explained to the Tribunal that she had worked for West Fuel Pty Ltd at its roadhouse business.  She told the Tribunal that she found the job through an advertisement, and that the nominating employer had struggled to fill the role given the location of the roadhouse.  She stated that she was offered sponsorship for a Subclass 187 visa if she took the position.  The first named applicant told the Tribunal that she worked for a while without incident, but then the business owner had requested money from her to pay her superannuation and to help cover the cost of her wages.  She told the Tribunal that she refused to do this, noting it was illegal to pay money for visa sponsorship, and that after explaining this to the owner, her employment ceased, and the nomination was not followed through.

18. The first named applicant told the Tribunal that it was through no fault of her own that she had come to be in this situation with West Fuel Pty Ltd, and that she had now secured casual work on a mine site in remote Western Australia.  She stated that she had recently been offered a permanent part time contract in that role.  She told the Tribunal that after the breakdown of the relationship with West Fuel Pty Ltd, she had applied for state sponsorship and that her nomination application had been approved, but that she has been unable to return to India to make the visa application given the Covid-19 pandemic.

19. The first named applicant told the Tribunal that she is working very hard to stay in Australia, and that she has applied herself in her work and has been successful as a Chef working in her fly-in-fly-out role.  She stated that her husband is a Pakistani national, and that if they were required to leave Australia at this time, they would not be able to travel together.  She expressed great distress at the thought of being separated from her husband.

20. The Tribunal acknowledged that based on the first named applicant’s evidence, she had been put in an unfair position by West Fuel Pty Ltd, and the Tribunal and acknowledged her honesty and diligence in refusing to comply with the demands allegedly made of her.  The Tribunal acknowledged the obvious difficulty that she would face if she was required to return to India at this time, but noted that its consideration in relation to this particular visa application was confined to whether or not she had an approved nomination from her nominating employer, and that the Tribunal had no discretion to take the applicants’ personal circumstances into account in making its determination as to whether or not there was an approved nomination to support this application.

21. The nominator’s nomination application was refused by the Department. As the nomination application for the position to which the first named applicant’s Subclass 187 visa application relates has not been approved, it follows that the first named applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

22. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105, where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

23. In this matter, the Tribunal notes that because there is no approved nomination for the first named applicant’s visa application, she cannot overcome her current inability to meet cl.187.233(3) in relation to her application.  The nomination by West Fuel Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

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. Pursuant to cl.187.311, the Tribunal must also affirm the decision to refuse to grant Subclass 187 visas to the secondary applicant as he is not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that he meets the primary criteria in his own right.

    DECISION

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

    Mary Sheargold
    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.