Solanki (Migration)

[2020] AATA 3258

Solanki (Migration) [2020] AATA 3258 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajendrakumar Khumansinh Solanki
Mrs Kaminiben Rajendrakumar Solanki
Master Param Rajendrakumar Solanki

CASE NUMBER:  1911530

HOME AFFAIRS REFERENCE(S):          BCC2018/5038034

MEMBER:Phoebe Dunn

DATE:16 June 2020

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 16 June 2020 at 12:16pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Motor Mechanic – nomination was withdrawn– no approved nomination – not the subject of an approved nomination – applicant is no longer employed by the nominator –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 13 November 2018. 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 the Direct Entry stream, to work in the nominated position of Motor Mechanic (General) (ANZSCO 321211).

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 related nomination application by CSM Auto Repairs Pty Ltd, being the nomination referred to in cl.187.233(1), was withdrawn by the nominator on 7 March 2019, and as such there was no approved nomination.

6. By letter dated 7 February 2020 the applicants were invited to appear before the Tribunal on 5 March 2020 to give evidence and present arguments. On 27 February 2020 the Tribunal received a request that the hearing be postponed on the basis that the applicant needed more time to collect supporting documents from his employer. The Tribunal sought further information from the applicant about the request.  The request for the hearing to be postponed to enable the applicant more time to prepare and collect supporting documentation was reiterated in a further email dated 4 March 2020.  The Tribunal granted the request and the hearing was rescheduled to 25 March 2020.

7. On 23 March 2020, the applicant again requested the proceeding be postponed to enable the applicant to obtain documents to support his case from his employer, stating that he needed 45 to 60 days to do so due to the COVID-19 pandemic. By letter dated 23 March 2020, the Tribunal advised that the request had been granted and that a new hearing date had not yet been set.

8. On 27 March 2020, the Tribunal wrote to the applicants inviting the applicants to comment on or respond to the determinative issue on review, being that the related nomination application by CSM Auto Repairs Pty Ltd (the nominator) had been withdrawn and as such there was no approved nomination as required under cl.187.233(3). The Tribunal outlined the particulars of the information and explained the relevance of it and the consequences of the Tribunal relying on the information, as follows:

   a.On 13 November 2018, the nominator lodged a nomination application under the Direct Entry stream, nominating the applicant in the nominated position of Motor Mechanic (General) (ANZSCO 321211) (the nomination), being the nomination in respect of which the applicant’s Subclass 187 visa application declaration was made.

   b.On 7 March 2019, the nominator withdrew the above nomination. This means that the nomination has not been approved as required under cl.187.233(3) of the Migration Regulations.

9. In its letter the Tribunal stated that the information was relevant to the review because it is a requirement for the grant of the applicant’s Subclass 187 visa that the related nomination application nominating the applicant to work in the nominated position has been approved.  The Tribunal explained that if the Tribunal relies on this information in making its decision, the Tribunal may find that the applicant is not the subject of a current approved nomination and that this would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

10. The applicant was invited to comment on or respond to the information or seek an extension of time to comment on or respond to the information, by 14 April 2020. On 13 April 2020, the Tribunal received a request for an extension of time to provide the comments or response on the basis that the applicant needed another 40 to 45 days to obtain the relevant documents from his employer. By letter dated 14 April 2020, the Tribunal granted an extension of time to 28 April 2020.  On 14 April 2020, the Tribunal received a further request for an extension of time to 20 May 2020, and by letter dated 21 April 2020, the Tribunal declined the request, stating that any comments or response must be received by 28 April 2020. The applicants did not respond.

11. By letter dated 29 April 2020, the Tribunal wrote to the applicants stating that the applicants had lost their right to a hearing for failure to respond within the stipulated period. In that letter the Tribunal stated that it would not be making a decision on this case until 13 May 2020 at the earliest and invited the applicants to provide any information or documents in support of their case, including commenting on or responding to the information they were invited to comment on or respond to in the Tribunal’s letter dated 27 March 2020, by 13 May 2020. The applicants did not respond.

12. The Tribunal notes, however, that as the applicants provided a copy of the decision record to the Tribunal at the time of lodging the review application and as the decision record contained the information set out in the s.359A letter, the exception in s.359A(4)(b) applies to the information, such that no consequences flow from the applicants’ failure to respond to the Tribunal’s letter within the stipulated period, as extended.  Accordingly, by letter dated 20 May 2020, the Tribunal wrote to the applicants asking them to disregard the letter dated 29 April 2020 and inviting them to a telephone hearing of the matter scheduled for 10 June 2020. 

13. 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.

14. In that hearing invitation letter, the Tribunal noted that if the applicants did not attend the hearing (by answering the telephone at the stipulated date and time) and an adjournment was not granted, the Tribunal may make a decision on the review without taking any further action to enable the applicants to appear before the Tribunal or may dismiss the application without any further consideration of the application or the information before the Tribunal.

15. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

16. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time at which they were scheduled to appear.

17. The Tribunal has considered whether it should exercise its discretion under s.362B(2) to reschedule the hearing or delay the decision on the review to enable the applicant to appear before the Tribunal as rescheduled.  The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to appear before the Tribunal or to provide any further information to the Tribunal. 

18. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the application of the principles of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

19. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that SMS reminders were sent about the hearing on two separate occasions. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

20. The Tribunal notes that the applicant has been aware for over 12 months of the reasons for the refusal of his Subclass 187 visa application, being that the related nomination had been withdrawn by the nominator and as such there was no approved nomination as required under cl.187.233(3).

21. The Tribunal also notes the history of this review application and, having regard to the Tribunal’s obligation to provide a review mechanism that is fair, just, economical, informal, quick and proportionate, the Tribunal is not disposed to delay its decision making indefinitely.

22. In these circumstances, the Tribunal has decided to make a decision on the review without exercising its discretion under s.362B(2) of the Act to reschedule the hearing or delay the decision on the review to enable the applicants to appear before the Tribunal as rescheduled, or to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Nomination of a position

24. 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.

25. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the 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 of the Regulations); 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. In this case, the related nomination application by CSM Auto Repairs Pty Ltd, being the nomination application referred to in cl.187.233(1), was withdrawn by the nominator on 7 March 2019. As such and following careful consideration, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination relating to the visa applicant and accordingly the applicant does not meet the requirements of cl.187.233(3).

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.

29. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.187.311(a).  As the first named applicant does not meet the primary criteria and has not been granted a Subclass 187 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.187.311.

    DECISION

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

    Phoebe Dunn
    Member

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Direct Entry stream; and

    (iii)seeks to meet the requirements of subregulation 5.19(12); 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.