Vu (Migration)

[2020] AATA 2380

Vu (Migration) [2020] AATA 2380 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duc Nang Vu
Ms Thi Huong Tran
Mr Duc Thang Vu

CASE NUMBER:  1814345

HOME AFFAIRS REFERENCE(S):          BCC2016/1271766

MEMBER:Susan Trotter

DATE:19 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 June 2020 at 10:52am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager (General) – subject of an approved nomination – procedural fairness – request for additional time granted – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 24 March 2016. The first-named applicant (the applicant) is a 47-year-old citizen of Vietnam. The second-named applicant is a 32-year-old citizen of Vietnam and is identified in the visa application as being the wife of the applicant. The third-named applicant is an 8-year-old citizen of Vietnam and is identified in the visa application as being the son of the applicant.

3. 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 (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 applicant, as primary visa applicant, applied for the visa in the Direct Entry stream, to work in the nominated position of Retail Manager (General) for JS Park Enterprise Pty Ltd (the nominator), the applicant for approval of a nomination in relation to the nominated position.

5. The second-named and third-named applicants applied on the basis of each being a member of the family unit of the applicant.

6. The delegate refused to grant the visas on the basis that cl.187.233(3) of Schedule 2 to the Regulations was not met because the associated nomination had not been approved as required. The delegate also found that the second-named and third-named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring them to each be a member of the family unit of a person who met the primary visa criteria.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 17 May 2018 and provided the Tribunal with a copy of the delegate’s decision.

8. The applicant appeared before the Tribunal by telephone on 25 May 2020 to give evidence and present arguments.

9. The applicants were represented in relation to the review.

10. The Tribunal has had regard to the applicant’s oral evidence, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal. The Tribunal has also taken into account submissions from the applicants’ representative, including written submissions received after hearing on 17 June 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.187.233(3).

    Nomination of a position

13. 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 application was made on or after 1 July 2017, it must identify the applicant in relation to the position.

14. In addition, this criterion also requires that:

    (a)  the person who will employ the applicant is the person who made the nomination;

    (b)  the nomination has been approved and has not been subsequently withdrawn;

    (c)   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;

    (d)  the position is still available to the applicant; and

    (e)  the visa application was made no more than six months after the nomination of the position was approved.

15. As noted in the delegate’s decision, and as discussed with the applicant at hearing, the nomination application lodged by the nominator nominating the applicant for the position of Retail Manager (General) was refused by the Department on 28 March 2018.

16. At the outset of the hearing, the Tribunal discussed with the applicant and his representative the request for adjournment of the hearing made on 20 May 2020 (which reasons for the request including because the applicant’s current migration agent was only engaged by the applicant shortly prior to hearing), which request was refused by the Tribunal. The Tribunal noted that it was amenable to hearing further in relation to whether the matter should be adjourned after the matters in issue before the Tribunal were canvassed.

17. The applicant told the Tribunal that he understood that there were three or four reasons why the Immigration officer refused the nomination application, including because they did not have enough information on the business activity statements from the nominator. He said the application was made by the nominator in March 2016 and it was not until two years later, in March 2018, that the Immigration officer made a decision in relation to the nomination without requesting any updated information and the nominator did not have a chance to provide the financial information for the 2016, 2017 and 2018 years, and it was therefore not fair for him or the nominator. As discussed with the applicant at hearing, the Tribunal noted that the reasons as to why the nominator’s application was refused, and the related process, was not relevant to the issue before the Tribunal, which was whether there was an approved nomination, as opposed to why there might not be an approved nomination.

18. The Tribunal put to the applicant[1] that, additionally, there was information before the Tribunal that following the refusal of the nomination application, the nominator sought review of that decision, and on 12 February 2020 this Tribunal (differently constituted) found that it had no jurisdiction to consider that application because the nominator was deregistered (on 2 September 2019) such that there was no longer a valid application for review. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this and the other information before it and found that there was no approved nomination and no pending review, meaning that there was no prospect that the nomination refusal decision could be changed, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant as primary applicant, and consequently to also refuse to grant the visa to the second-named and third-named applicants.

    [1] Pursuant to procedure set out in section 359AA of the Act

19. The applicant told the Tribunal that he wanted to know the reason why the nomination was refused in February 2020. The Tribunal repeated that the Tribunal (differently constituted) had found in February 2020 that it had no jurisdiction to consider the nominator’s review application because the nominator company had been deregistered on 2 September 2019.

20. The applicant said that he was not allowed to and did not attend to the hearing in February 2020. Further, a lot of information in relation to the nominator is with the previous migration agent and he has not had much access to that information. Also, the application has gone on for four years since the application was first made.

21. The Tribunal discussed with the applicant that there was no hearing in relation to the nominator’s application to the Tribunal because the Tribunal had no jurisdiction to consider the matter because the nominator was deregistered.

22. The Tribunal again advised the applicant that he was entitled to seek an adjournment if he wished. The Tribunal then adjourned the hearing for 15 minutes, as requested. Following the adjournment, the Tribunal asked the applicant if there was anything additional, he wished to say. The applicant responded that for the last two years he has not had enough information from his employer (the nominator) and his (previous) migration agent until two weeks ago. His employer did not keep him updated. He needs more time to know about the process and what happened. He does not know anything about what has happened for the last two years. The Tribunal acknowledged the applicant’s circumstances in this regard but noted that whatever time might be allowed, it could not change the position on the evidence before the Tribunal that there was no approved nomination, nor a pending review in relation to the nomination refusal, such that no matter what time was allowed that position could not change and that there would be no difference in relation to whether the required criterion is met.

23. The applicant’s representative submitted that they understood the lack of practicality in terms of providing additional time but that there is a procedural fairness element, in that before the hearing the applicant was not given any information from the Tribunal that there was a no jurisdiction decision in February 2020 in relation to his nominator’s application to the Tribunal. Additionally, his (previous) migration agent has also ‘kept him in the dark or not appropriately informed him’ and was not able to attend the hearing today and, procedurally, the applicant had not had the chance to understand the position he was in, and it would be procedurally fair to give him time to evaluate his position and to maybe even consider withdrawing the application for review.

24. The Tribunal discussed with the applicant and his representative that as regards procedural fairness, the Tribunal had raised the relevant information in relation to the nominator’s application, adopting the procedures set out in s.359A A of the Act, and invited the applicant to seek additional time, and that even though there can be little utility in granting additional time, in the circumstances the Tribunal was amenable to considering a request for additional time. The applicant’s representative then requested that a further 14 days be allowed. The Tribunal noted that it did not consider there had been any lack of procedural fairness on the part of the Tribunal but in any event agreed to deferring its decision-making until not before 8 June 2020 to allow the applicant to provide anything further to the Tribunal, but after that date the Tribunal would be proceeding to make a decision.

25. As regards adjourning the matter for any further time past 8 June 2020, and now past 19 June 2020, the date of decision, the Tribunal has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment. As already noted, given the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that includes being quick, in circumstances where on the evidence before it there is no evidence that a necessary requirement for the visa is met, or can be met, the Tribunal concluded that it is not appropriate or reasonable to adjourn for any further time. In reaching this conclusion, the Tribunal does not in any way diminish the background to the applicant’s circumstances as discussed, and the Tribunal accepts that the information provided by the Tribunal to the applicant in relation to the nominator came as a surprise to the applicant. However, the issue before the Tribunal is whether there is an approved nomination in relation to the applicant’s visa application. The evidence before the Tribunal indicates that the associated nomination application has been refused and that there is no pending review of that nomination refusal. As the relevant nomination has not been approved, and cannot now be approved, it follows that the applicant does not meet the requirements of cl.187.233(3). Therefore, cl.187.233 is not met as a whole.

26. 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 in relation to the applicant must be affirmed.

27. The Tribunal must also affirm the decision not to grant the second-named and third-named applicants Subclass 187 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.

    OTHER MATTERS

28. The post-hearing submissions received from the applicants’ representative were received after 8 June 2020, on 17 June 2020, but nonetheless have also been carefully considered by the Tribunal. Those submissions acknowledge that the applicant does not meet cl.187.233(3) of Schedule 2 to the Regulations given that there is no approved nomination, and a request is made that the Tribunal consider referring the applicants’ case to the Minister for him to exercise his discretion to provide a more favourable decision to the applicants. In this regard, the submissions address a number of matters said to be relevant to this request including:

    (a)  Circumstances outside the applicant’s control, in that the applicant been placed in the position he is due to failures by his employer.

    (b)  Dependants – the applicant has dependants in Australia with him who rely on his emotional and financial support – the second-named and third-named applicants. The applicant and the second-named applicant have been in Australia since 2007 and have significant ties to Australia, having created a life for themselves here and calling Australia home, as has their son who was born and has been raised in Australia such that he only understands English, has been going to school in Australia, has not known a home outside Australia and has no ties to his parents’ home country meaning that the impact of the visa refusal upon him would be significant.

29. The Minister’s guidelines for intervention are set out on the Department’s website[2]: The Tribunal has carefully considered the matters raised but does not propose to recommend the matter to the Minister for intervention. However, it remains open to the applicants to consider these guidelines and make such a request if they believe that they have sufficient grounds to warrant Ministerial intervention.

    [2] >

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

    Susan Trotter
    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.