Vithana Pathirana (Migration)

Vithana Pathirana (Migration) [2021] AATA 3784 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Don Ruchira Ranjan Vithana Pathirana
Mrs Kurukulasuriya Niyomi Christeen Fernando
Mr Levon Vithana Pathirana

CASE NUMBER:  1934698
HOME AFFAIRS REFERENCE(S):          BCC2018/987367
MEMBER:Karen McNamara
DATE:16 September 2021
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 16 September 2021 at 11:51am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Hotel or Motel Manager – no approved nomination – nomination review application withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13
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 1 March 2018. 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 Mr Don Ruchira Ranjan Vithana Pathirana (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated occupation of Hotel or Motel Manager (ANZSCO 141311).
The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required, Mr Don Ruchira Ranjan Vithana Pathirana to be the subject of an approved nomination. The delegate found that the nomination lodged by BG Hotels (Holinn) Pty Ltd (the nominator) was refused on 28 October 2019.
Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.
The delegate also found that the second named applicant, Mrs Kurukulasuriya Niyomi Christeen Fernando could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.
On 29 April 2021, following the subsequent inclusion of the applicant’s son Mr Levon Vithana Pathirana to the visa application, a delegate of the Minister for Home Affairs found that the third named applicant in this matter, Mr Levon Vithana Pathirana, could not be granted a Subclass 187 visa, as he did not meet the secondary visa criterion (cl.187.311) requiring him to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.
The applicants applied to the Tribunal on 8 December 2019 for review of the delegate’s decision.
On 6 August 2021, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 9 September 2021 at 1:00 pm (NT time) 1:30pm (NSW time).
On 13 August 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.
The information related to information before the Tribunal that shows the nominator BG Hotels (Holinn) Pty Ltd withdrew their nomination review application on 26 August 2020 which was accepted by the Tribunal on 14 September 2020.
The Tribunal’s letter of 13 August 2021 additionally stated the following;
‘ The above information is relevant because cl.187.233(3) requires that the nomination
made in relation to you by your nominating employer has been approved.
The nomination relied on to satisfy cl.187.233 must be the one that was made at the
time of the visa application – it is not possible to rely on another nomination. You must
have a related nomination to be able to be granted the visa.
If the Tribunal relies on this information, it may not be satisfied that your application
meets the requirements of cl.187.233(3) and consequently the decision under review would be affirmed.
Additionally, there is information before the Tribunal by way of allegations received by the Department in March 2019 alleging you and your wife provided false information to Immigration and your sponsoring employer about your qualifications and experience in order to obtain a 187 visa.
Clause 187.233(4A) requires 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.
The above information is relevant, because it suggests that there is adverse
information known to Immigration about you (a person associated with the person who
made the nomination) and there is no information currently before the Tribunal to
suggest it is reasonable to disregard this adverse information.
If the Tribunal relies on this information, it may not be satisfied that your application
meets the requirements of cl.187.233(4A) and consequently the decision under review
would be affirmed.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 27 August 2021. If the comments or
response are in a language other than English, they must be accompanied by an
English translation from an accredited translator.
If you cannot provide your written comments or response by 27 August 2021, you may
ask us for an extension of time in which to provide the comments or response. If you
make such a request, it must be received by us by 27 August 2021 and you must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
An invitation to attend a scheduled hearing was sent to you on 6 August 2021.
Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you will lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal will proceed to make a decision on the review without taking any further action to obtain your views on the information.’
On 16 August 2021 the Tribunal received a signed hearing response from the applicants dated 13 August 2021.
On 27 August 2021, the applicants sought an extension of two weeks to respond to the Tribunal’s invitation to comment. The applicants in their email stated “ I have read the attached letter from AAT and we are seeking legal advice at the moment on the said matter as we are not sure how to respond or comment in this unexpected situation.
Therefore I would humbly ask for an extension of at least two weeks to gather our paperwork so we can respond to the allegations in a proper manner.”
On 30 August 2021, the Tribunal by return email wrote to the applicant advising that whilst careful consideration had been afforded to the request, an extension was not granted and that the applicant would be afforded the opportunity to address the issues raised in the Tribunal’s invitation to comment (dated 13 August 2021) at the hearing scheduled on 9 September 2021.
Mr Don Ruchira Ranjan Vithana Pathirana appeared on behalf of the applicants, before the Tribunal via telephone, on 9 September 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 applicants. 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.
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 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 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.
At the hearing of 9 September 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.187.233, the applicant must be subject of an approved nomination.
The applicant told the Tribunal in response to the allegations of providing false information about his qualifications and experience, the applicant attained a Bachelor of Hospitality Management from Holmesglen Institute in Victoria and has worked for DoubleTree Hilton since 2013. The applicant told the Tribunal that he has never been contacted by the Department in regard to the allegations and that he provided copies of his qualifications to the Department. Prior to the Tribunal bringing the allegations to his attention, he was not aware of the said allegations.
The Tribunal is satisfied the applicant has been given the opportunity to address the adverse information and that any procedural obligations have been discharged.
In regard to his employment with the nominator, the applicant told the Tribunal that the hotel closed for nearly a year because of the impact of COVID. Because he was not an Australian citizen or permanent resident, he was made redundant and the nominator hence withdrew their nomination review application. The hotel has since reopened but he was not offered his job back and has struggled to find work but is currently doing odd jobs.
The Tribunal has empathy for the applicants circumstances however, the Tribunal must apply the legislation as it stands. As explained to the applicant at the hearing, the Tribunal must apply the relevant law.
Having considered the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations.
As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.
There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.
As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the second named applicant Mrs Kurukulasuriya Niyomi Christeen Fernando and third named applicant Mr Levon Vithana Pathirana as a member of Mr Don Ruchira Ranjan Vithana Pathirana’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.187.311.
The applicants have 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.
DECISION
The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Karen McNamara
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.

[2021] AATA 3784

16 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice