Thomas (Migration)

[2019] AATA 6543

Thomas (Migration) [2019] AATA 6543 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shojin Thomas
Master Josh Toji
Mr Toji Thomas Palackal

CASE NUMBER:  1922102

HOME AFFAIRS REFERENCE(S):          BCC2018/881425

MEMBER:Alan McMurran

DATE:20 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2019 at 10:45am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – no approved nomination – employer nomination application refused – refusal review not sought – previous employment terminated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.13, Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 9 August 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2019 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 23 February 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 Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, because an application for approval of a nomination lodged by Rose Mary Thomas as nominator was refused by the Minister, in guise of the Department

6. The applicants appeared before the Tribunal on Friday 13 December 2019 to give evidence and present arguments. The Tribunal received oral evidence from the primary visa applicant. The applicant acted on her own behalf without representation for the hearing, and did not require an interpreter.

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

   Background

8. The applicants are citizens of the Republic of India. The applicant arrived in Australia on 10 May 2009 as a student. The applicant has a diverse background in skills and qualifications.

9. The applicant has a history in Healthcare, obtaining a Diploma in general nursing and midwifery in India and a Certificate III in aged care, obtained in Queensland in 2011. The applicant has some experience working as an assistant nurse in Australia from 2012 to 2014, and prior to that as a nurse in India. The applicant has worked as an assistant nurse at the Bellevue Nursing Home in Australia from January 2010 until February 2018.

10. The applicant also has qualifications in Hospitality, with a Diploma obtained in Queensland in February 2018, from the American College in Queensland, and an Advanced Diploma of Business from the same institution, obtained in 2016.

11. The applicant explained at the hearing that she had sought assistance from a lawyer in Brisbane (Tonio Lawyers), who had introduced her to the nominator trading as “Binnys Kathitto”. She explained this is a style of Indian street food cuisine, and named after the nominator’s husband (“Binny”).

12. The nominator’s restaurant is located at Braddon in the ACT. The applicant was offered an employment contract working as the restaurant manager for the nominator in the ACT; the contract is dated 13 March 2018, and is subject to approval of the applicant’s Subclass 187 visa.

13. The applicant said she had commenced working at the restaurant in Canberra, but had subsequently left that employ and was now engaged in a complaint with the Office of the Fair Work Ombudsman on account of unpaid wages and overtime, and refused sick leave and holiday pay. She said a lawyer in Canberra is assisting her. The applicant provided evidence of that dispute with the nominator and the application she has made to the Ombudsman, dated 27 August 2019. Consideration of the complaint is apparently still ongoing. The applicant also has proceedings pending in the ACT Civil and Administrative Tribunal.

14. The applicant said she was not made aware by the nominator, or the lawyer, of the reasons for refusal of the nomination. Details of the nomination application and the Department’s decision were not before this Tribunal. The Tribunal notes that there is no record of a review sought by the nominator in respect of the refusal, or any request for an extension of time to consider such an application

15. The applicant said at the hearing that she did not know what had happened in respect of the nomination as she had not been informed, but she was now looking for another employer to sponsor her to work in Australia. The applicant said she understood that as the nomination applied for has not been approved, then her visa application could not be approved. The applicant asked however that should be given some time to enable her to find alternative employment.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved.

    Nomination of a position

17. 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.

18. 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.

19. The tribunal is satisfied that a decision was made by the Department on 2 July 2019 to refuse the nomination application lodged on behalf of the visa applicant by Rose Mary Thomas.

20. The Tribunal has had regard to the evidence on the Tribunal’s case file, electronic records from the Department’s file BCC 2018/881425 and the submissions at the hearing.

21. The Tribunal sent a letter to the applicants under section 359A of the Act on 27 November 2019. The letter provided particulars that the nomination had been refused and that on the information before the Tribunal, the nomination for the identified position was not approved and that decision was not subject to a current application for review. The applicants were invited to respond and to provide comments.

22. The applicant responded on 29 November 2019 advising of her new email address and contact details, and indicated she would like to attend the hearing. The applicant also provided a copy of her current Indian passport.

23. The applicant’s lawyer, Kelvin Mateer, from Tonio Lawyers in Brisbane also sent a letter to the Tribunal on 10 December 2019 stating “We request an extension of time to consult with our client to take further instructions on their intentions”.

24. At the hearing, the applicant did not explain the letter from the lawyer and said she was not seeking their representation for the hearing, which was not surprising given that the applicant said the lawyer had not informed her of the outcome of the nomination at first instance, and the lawyer had been acting for the nominator and had introduced them. The Tribunal did not respond to the lawyer’s letter which was received 2 days before the hearing, and as noted, the lawyer did not appear. The applicant did not seek any adjournment on this account and the hearing proceeded as indicated above.

25. At the hearing, the applicant provided further evidence, being a copy of her employment contract with the nominator, evidence of her work schedule with the nominator, a letter from the senior manager Skills Canberra dated 17 September 2018 and stating “the nomination satisfies the above requirements”.

26. The applicant also supplied a handwritten summary of her payments by the nominator, a note from her superannuation provider, Sunsuper, advising her that “your employer is no longer paying super into your Sunsuper account”, a copy of a discharge summary from Calvary public hospital in Canberra referencing a hospital attendance by the applicant in April 2019, an airlines’ travel itinerary for April 2019 between Australia and India and for return in May 2019, and an application to the Fair Work Ombudsman made August 2019. The applicant also provided details of her application to the ACT Civil and Administrative Tribunal.

27. The Tribunal considered all this material, noting and informing the applicant this was not a review of the nomination refusal. The applicant said she understood but wanted the Tribunal to be aware of the background.

28. The Tribunal has considerable empathy for applicants whose employment comes to a sudden end due to no fault of their own, and in circumstances where they are reliant upon that employment for a successful visa application. The Tribunal finds in this instance the employment was terminated, the nomination application by the applicant’s employer was not approved, and no review was sought of the refusal.

29. Tribunal finds that the applicant is not the subject of any other or further nomination application which is under review or being considered by the Department. The Tribunal finds that the applicant is seeking to pursue other employment, but is unable to provide details of a sponsorship and nomination as at the date of decision, and the Tribunal finds it is not appropriate in the circumstances to grant an extension of time or postponement of the decision for an indefinite period while an employment opportunity is pursued by the applicant.

30. For these reasons, the Tribunal is satisfied that the applicant is not the subject of a nomination which the Minister has approved and does not meet the criterion for approval of the visa application.

31. The Tribunal finds that subclause 187.233 (3) of the Regulations incorporating the criteria for Direct Entry stream applicants is not met.

32. 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.

    Secondary applicants

33. The second and third named applicants are respectively the spouse and child of the primary visa applicant and members of the family unit of the primary applicant.

34. Approval of the applications by the secondary applicants is dependent upon a successful application by the primary applicant, and if the primary application is refused, then it follows that the applications by the secondary applicants must also fail.

    DECISION

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

    Alan McMurran
    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.