VIJENDER SINGH (Migration)

[2020] AATA 4794

VIJENDER SINGH (Migration) [2020] AATA 4794 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VIJENDER SINGH
Ms SIMPLE KANWAR

CASE NUMBER:  1904537

HOME AFFAIRS REFERENCE(S):          BCC2017/1744611

MEMBER:Bridget Cullen

DATE:29 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 29 October 2020 at 9.39am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Hospitality, Retail and Service Managers – subject of an approved nomination – nomination withdrawn – compassionate circumstances – longstanding and systemic bullying in sponsor’s business – serious psychiatric injury arising out of employment – serious, ongoing and irreversible harm – unfair or unreasonable results – Ministerial Intervention requested – 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

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 16 May 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 (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 Direct Entry stream, to work in the nominated position of Hospitality, Retail and Service Managers (ANZSCO 149999).

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 applicant’s associated nomination was withdrawn by the associated nominator, and therefore was not subject to an approved nomination.

6. The applicants appeared before the Tribunal on 6 October 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent, Peng Zhen, of Australia Better Migration Pty Ltd (MARN 0961986).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is subject to an approved nomination.

   Nomination of a position

9. 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.

10. 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.

11. The application for the visa subject to this application for review was lodged on the basis of being nominated by Princes Linen S.A. Pty Ltd. The nomination was withdrawn by the company on 11 January 2019.

12. The Delegate refused the application because as the application was withdrawn, it was not approved.

13. The Tribunal, on 17 August 2020, wrote to the applicant, pursuant to s.359A in the following terms:

    “The particulars of the information are:

    ·     On 16 May 2017, you applied for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas.

    ·     It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. For the purposes of meeting cl.187.233(1), you stated that Princes Linen S.A. Pty Ltd was your nominating company.

    ·     The Tribunal has information that on 11 January 2019, the nomination for the position identified in your visa application was withdrawn.

    This information is relevant to the review because it suggests that you are not the subject of an approved nomination. The criteria which the Tribunal must look at requires that the nomination be approved and not withdrawn, as required by cl.187.233(3) and cl.187.233(4). Furthermore, lodging a new nomination application will not enable you to meet the criteria for this visa application.

    If we rely on this information in making our decision, we may find that as your nomination has been withdrawn, that you are unable to meet cl.187.233(3) or cl.187.233(4), which requires that the nomination be approved and not subsequently withdrawn. If relied upon this way, subject to any comments or response you make, the information would be the reason, or part of the reason, for affirming the decision under review.”

14. On 29 August 2020, the Tribunal received a response from the applicant’s Registered Migration Agent. The applicant acknowledges that the nomination for the position identified in his visa application was withdrawn.

15. As the nomination has been withdrawn, the applicant is unable to meet cl.187.233(3) of Schedule 2 to the regulations. Therefore, cl.187.233 is not met.

16. 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.

17. As the Tribunal has affirmed the primary review applicant’s application for review, it therefore follows that the secondary applicant is unable to meet cl.187.311, which requires that they are a member of the family unit of an applicant who meets the primary criteria required for the grant of the visa. It therefore follows that their decision must also be affirmed.

    MINISTERIAL INTERVENTION

18. On the same day the Tribunal sent the letter pursuant to s.359A, it also wrote to the applicant under s.359(2), requesting information which would assist the Tribunal in making an assessment whether to refer the applicant’s case to the Minister for their potential intervention.

19. The applicant has provided extensive information to the Tribunal in support of his request that, pursuant to s.351 of the Act, in the event of an unsuccessful Tribunal decision, that the Tribunal consider referring the matter to the Minister for his consideration.

20. The applicant worked for the same Australian employer, Princes Group Company “Princes”, from December of 2010. Although he initially commenced work for Princes in Boxhill, Melbourne, he was transferred to Princes Linen SA, Adelaide, from December of 2016. The applicant has lived in Australia for more than 13-years.

21. Following longstanding and systemic bullying, the applicant made a complaint in relation to a serious psychiatric injury arising out of his employment for his sponsor. His claim made under the Return to Work Act 2014 (SA) was accepted for an injury dated 19 March 2018. In the Decision Record accepting the claim, it is noted that the applicant’s employment with his sponsor was “the significant contributing cause of his claimed psychiatric injury.”

22. The Tribunal also has before it a range of documents relating to the psychological trauma the applicant has endured, as well as objective independent information from Return to Work SA, and the Decision Record accepting the applicant’s injury.

23. In addition to this evidence, at the hearing, the applicant explained that he had worked for his Australian employer for 8-years, prior to sustaining the accepted workplace injury. The applicant’s sponsor withdrew his nomination after he suffered the workplace injury. It is concerning that, given the power disparity that exists between a sponsored worker and an employer, that circumstances have arisen where the applicant will be further disadvantaged by withdrawal of sponsorship by the employer who caused his workplace injury in the first place. The Australian community expects employers to behave in a manner that does not tolerate bullying in the workplace, which in the applicant’s case is quite serious.

24. The Tribunal has considered the Guidelines for Ministerial referral, and is of the view that, cumulatively, there are compassionate circumstances regarding the applicant’s health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. It further considers that, overall, the application of the relevant legislation leads to unfair or unreasonable results in this case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.

    DECISION

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

    Bridget Cullen
    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

    (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.