Vijay Pal Singh (Migration)

Vijay Pal Singh (Migration) [2024] AATA 3233 (21 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Vijay Pal Singh
Mrs Gurpreet Kaur
Master Fateh Singh
Master Sahib Singh
CASE NUMBER:  2301992
HOME AFFAIRS REFERENCE(S):          BCC2017/3388014
MEMBER:Amanda Mendes Da Costa
DATE:21 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 21 August 2024 at 8.38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – pastry cook – adverse information – nominator deregistered and not actively and lawfully operating – applicant currently working for another employer – previous refusal on another ground set aside – occupation on priority skills list – members of family, including Australian-born children – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicants applied for the visas on 17 September 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
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.
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 Pastry Cook.
The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because at the time of the decision, the nominator was not actively and lawfully operating which constituted adverse information about the nominator.
The applicants appeared before the Tribunal on 7 August 2024 to give evidence and present arguments.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant and second named applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant and second named applicant that it would seek submissions from them toward the end of the Tribunal hearing on any matter they considered relevant to the review.
Although the third named and fourth named applicants attended the hearing with their parents (the applicant and second named applicant) the Tribunal did not hear evidence from them, given their young ages.
In making its decision, the Tribunal has considered the information in both the Departmental and Tribunal files. The information provided to the Tribunal for the purpose of the review, includes the following documentation:
·Copies of the biodata pages of the applicants’ passports.
·Notification of nomination approval.
·Applicant’s statement (undated).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl 187.233 of Schedule 2 to the Regulations.
Nomination of a position
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.
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 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.
Background
Departmental records show that:
·The nomination application associated with the applicant’s visa application identifies the nominating employer as THE TRUSTEE FOR KH&SM INVEST TRUST (the nominator).
·On 17 December 2022, the Department received a Form 956 signed by the applicant authorising the end of his appointment of his migration agent (Jujhar Bajwa) and the direction of any future correspondence to the applicant’s personal email address.
On 21 December 2022, the Department invited the applicant (by email) to comment on adverse information and provide documentary evidence to demonstrate why certain adverse information should be disregarded under cl 187.233(4A)(b).
The adverse information was that publicly available information online from the Australian Securities and Investments Commission (ASIC) indicated that the business THE TRUSTEE FOR KH&SM INVEST TRUST had been deregistered and that its registration for GST had been cancelled from 1 December 2019.
The applicant provided the Department with two income statements dated 2021/2022 and 2022/2023 (from 1 July 2022 to 6 November 2022) which show that the applicant was employed by THE TRUSTEE FOR NOISETTE BAKERY UNIT TRUST (and not the nominator). The applicant also provided a letter from the nominator (dated 21 October 2022) in which the nominator advises that it needs the applicant to fill the position of Pastry Cook for at least two years although nominator does not exist anymore as per information from ASIC.
On 20 January 2023, a Departmental officer spoke to the applicant by telephone, advising that the Department had not received a response to the email dated 21 December 2022. When the applicant said that he had not received this email the officer gave the applicant until 27 January 2023 to provide a response. The officer further advised that if the applicant did not provide a response to the Department by 27 January 2023, it would proceed to make a decision on the visa application.
The delegate found that the fact that at the time of the decision, the nominator was not actively and lawfully operating which constituted adverse information about the nominator and he therefore did not meet the requirements of cl 187.233.
information in the Tribunal’s files
Tribunal records show that:
·On 22 August 2017, a delegate of the Minister refused the nomination application of the nominator (made 12 April 2017) for the position of Pastrycook for the applicant. The nominator subsequently lodged an application for review of that decision with this Tribunal but on 16 July 2020 the Tribunal accepted the withdrawal of the nominator’s review application.
·On 4 June 2019, a delegate of the Minister refused the applicants’ subclass 187 visa applications on the grounds that the applicant did not meet the requirements of PIC 4020 and the second named, third named and fourth named applicants did not meet the secondary requirements for the visas. The delegate found that the applicant had provided a bogus document, being a certificate IV level qualification in patisserie. The applicants lodged an application for review of that decision and on 29 September 2022 this Tribunal (differently constituted) set aside the delegate’s decision and remitted the visa applications for reconsideration with a direction that the applicant met the requirements of PIC 4020 for the purpose of cl187.213 and the second named, third named and fourth named applicants satisfied the secondary requirements for the visas.
Applicant’s evidence at the hearing
The Tribunal discussed the background information with the applicant. In response, he explained that:
·He arrived in Australia in 2009 on a student visa and successfully completed a certificate III level qualification in patisserie, a diploma level qualification in management and an advanced diploma level qualification in management prior to receiving a second student visa which enabled him to undertake studies for a certificate IV level qualification in patisserie.
·After working in a café, as a baker and as a courier driver, he obtained employment in the nominated position of Pastrycook with the Noisette baker in Dandong South, Victoria, where he remained until later 2022. He then obtained his current position as a Pastrycook in a café in Mornington, Victoria.
·He was previously offered a position as a pastrycook with the nominator who was operating a business in Queensland[1]. He did not get the opportunity to take up this position because his subclass 187 isa application was refused by a delegate of the Minister who found that his Certificate IV level qualification in patisserie was a bogus document which meant that he did not meet the requirements of Public Interest Criterion 4020.
·He applied for a review of the delegate’s decision with this Tribunal and in 2022 the Tribunal (differently constituted) accepted that his Certificate IV level qualification was a genuine qualification and sent the visa applications back to the Department to be reconsidered.
·Although his review application was successful, by the time that the Tribunal made its decision the nominator’s business had ceased trading due to the effects of the Covid-19 pandemic.
·The delay in the Tribunal hearing his review application prevented him from commencing his employment with the nominator.
[1] The applicants provided the Tribunal with a letter by the nominator (dated 21 October 2022) in which the nominator confirms that it has offered the applicant employment as a Pastrycook for a period fo two years.
Applicant’s written statement
The applicant’s statement is consistent with his oral evidence. He also explains that he and his family have been required to endure the uncertainty regarding their visa status because of the previous finding by a delegate of the Minister that he had not met the requirements of PIC 4020 and the subsequent loss of his position with the sponsor. He explains that he has not left Australia in the past 15 years during which time he has worked hard, paid income tax and financially supported his wife and children.
He feels he has been punished although he has done nothing wrong and has always complied with his visa conditions.
Evidence of the applicant and second named applicant at the hearing
The second named applicant (the applicant’s wife) told the Tribunal that the past nine years have been very stressful for her family. She explained that she and the applicant had lived in limbo due to their uncertain visa status. During this period, she has given birth to the couple’s two sons (the third named and fourth named applicants) who are aged seven and two years, respectively. She said that it had been very difficult to be pregnant and give birth without family support.
The second named applicant further explained that she and the other applicants had been unable to return to India to visit their extended family members and as a consequence, the third named and fourth named applicants have no real relationship with their family in that country.
The second named applicant told the Tribunal that the third named applicant is currently enrolled in Grade 1 at a local primary school and is enjoying his studies and school friends. She said that her family is happy and settled in Australia where she and the applicant would like to continue raising their children.
Both the applicant and second named applicant emphasized in their evidence that they were not responsible for the difficulties experienced by them with their visa applications and had worked hard to make a permanent home in Australia where they had complied with their visa conditions and obeyed Australian laws.
Findings
The Tribunal is satisfied that the position to which the visa application relates has been the subject of an approved nomination in the Direct Entry stream[2]. However, based on the evidence before it (including the oral evidence of the applicant) the Tribunal is not satisfied that the position is still available to the applicant.
[2] The Notification of Nomination Approval dated 16 April 2019 shows that the Department approved the nomination application for the position of Pastrycook ANZSCO 351112 by the sponsor for the applicant.
Therefore, cl 187.233 is not met.
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.
Given its findings regarding the applicant, the Tribunal is not satisfied that the second named, third named and fourth named applicants meet the secondary requirements for the grant of the visas.
Request for Ministerial Intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal accepts that the applicant has lived in Australia for the past 15 years where he has worked and paid income taxation. It also accepts that through no fault of his own, his visa application was refused on the grounds that he did not meet the requirements of PIC 4020 and that by the time this Tribunal had set aside that decision and referred the matter to the Department for reconsideration, the position with the sponsor was no longer available to him. The Tribunal further accepts that the applicant has since obtained employment with another employer in his nominated position of pastrycook and has been employed in that position for the past two years. The Tribunal further notes that the Priority Skills List 2023, published by Jobs & Skills Australia indicates that there is currently a shortage of Pastrycooks in each state of Victoria and nationally in Australia. The Tribunal considers that the applicant is performing a valuable and much needed role in the Australian community and is contributing to the Australian economy.
The Tribunal is further satisfied that the applicant’s children have been born in Australia and that his son is settled at school where he is progressing well both academically and socially.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Amanda Mendes Da Costa
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.

[2024] AATA 3233

21 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction