Warring (Migration)

[2020] AATA 3056

Warring (Migration) [2020] AATA 3056 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjit Singh Warring

CASE NUMBER:  1819424

HOME AFFAIRS REFERENCE(S):          BCC2016/955801

MEMBER:Mr S Norman

DATE:17 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2020 at 12:28pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – not working for six months – time off for personal circumstances, or no work available – tribunal and agent unable to contact applicant – no appearance at hearing – no evidence that position still available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(5)

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 7 March 2016. 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.

3. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager. The delegate refused to grant the visa because the applicant did not meet cl.187.223(5) of Schedule 2 to the Regulations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

5. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

6. On 7 March 2016, the applicant/nominee lodged an application for a Subclass 187 visa in the Temporary Residents Transition Stream; and the nominated occupation was for a Café or Restaurant Manager (ANZSCO: 141111). The associated nomination had been approved on 24 October 2016. However, the delegate was not satisfied the applicant met cl.187.223(5); or cl.187.223. After then finding the applicant had not met the criteria in other Visa streams within the class, the delegate refused to grant the applicant the Regional Sponsored Migration Scheme (Subclass 187) Visa.

7. In their decision, the delegate noted that on 14 May 2018, a Department officer contacted the applicant and requested payslips and bank statements to show salary deposits. In response the applicant had been recorded as saying: 

   I have not been working for the sponsor for the last 6 to 7 months … I have spoken to the sponsor a few times. They don’t have jobs for me … they are waiting to open for lunch so I can start again 

8. On 6 June 2018, the Department received a letter from a migration agent which described the personal circumstances of the applicant (relating to his marriage and separation on a number of occasions). The delegate then referred to the following submission by the migration agent:

   The nomination has been approved [on 24 October 2016] and the nominated position is available. The fees applicant is again working for the nominator in the nominated position as a Restaurant Manager. The position is vital to the successful operations of the business and [the applicant] is back for filling his required role … The nominee has been selected through a proper recruitment process and had worked on a Subclass 457 Visa in the same position in the same business

   …..

   The Visa applicant had to take some time off and the agreement was that he would return as soon as possible. The nominator did not want to lose him and he, the visa applicant, wanted to continue with his plan and work for the nominator. The joint agreement between the nominee/Visa applicant and the employer to put his mind at rest and recover from his personal problems seems to have worked.

   When contacted quite unexpectedly by a Department officer, woken up by the call, the Visa applicant has seemingly misinterpreted the questions put to him and has phrased his response in adequately. He indeed has not been working for a while for reasons explained above. …

   The employer and the Visa applicant have recently had a long discussion and both agreed that he was fit again to recommence his duties. They both see him in this role for years to come. … [Therefore] the Visa applicant is back in his role as a full-time Manager. The job is available and has always been there; it is an essential position for the business in order to run their ever expanding operations. And he, the approved nominee and Visa applicant, is as per the nomination, in this nominated role.

9. Be that as it may, the delegate noted the migration agent letter was dated 3 June 2018 and the more recent payslips indicated the Visa applicant was paid for the period 15 May 2018 to 28 May 2018. The delegate said this new payslip was issued today after a Department officer had phoned the applicant, and the delegate was not satisfied it was “in the usual format of a payslip”.

10. Next, the delegate noted the migration agent letter stated the applicant was then back in his role as a full-time Restaurant Manager. However, given it was conceded the applicant had not been employed by the nominator for six or seven months at the time the Department officer contacted the applicant (being 14 May 2018 – approximately two weeks prior to the migration agent letter), and that the reason for this was that the nominator ‘did not then have a job for him and that they were waiting for lunch to start again’ and had been ‘ looking for work elsewhere’, this was a further reason the delegate was not satisfied the applicant was again ‘working’ with the nominator.

11. The Tribunal notes the visa applicant was said to have been experiencing difficult emotional times, however, his explanation for not working being that he was in contact with the nominator, and that there was no job for him (the lunch operation had not been opened), and that he was seeking work elsewhere, appears to be a different explanation to that which was subsequently provided by the migration agent (it being based on misinterpretation).

12. The delegate also noted the payslips and bank statements lodged indicated the nominee was now again working for the nominator (from one day after being contacted by the Department officer). However, in light of the other concerns and adverse findings, the delegate was not satisfied that sufficient evidence had been provided to demonstrate the employer’s ability to provide full-time employment for the Visa applicant for the next two years. Given the most recent payslip indicated the applicant had recommenced work one day after the applicant was contacted by the Department officer, and at a time when he was unsure when he would again commence work, this is further reason that has satisfied the delegate the position was not available to the applicant.

13. By Tribunal letter dated 12 June 2020 (emailed to his authorised recipient), the applicant was invited to attend a Tribunal hearing on 17 July 2020. By email dated 24 June 2020, the migration agent/authorised recipient advised the Tribunal that: 

    … we have been appointed to assist with lodgement of this matter only to the AAT. I have since tried to contact Mr Warring however have been unable to reach him via phone or email (his phone number now belongs to a different person).

    This email is to make the AAT aware that it is likely Mr Warring will not be present at the Hearing as scheduled unless he has new representation. I will of course be in contact if we do hear from him.

14. The Tribunal has not received any further information from the applicant or his migration agent/authorised recipient. At the time and date of the scheduled hearing (10.30am, 17 July 2020), the Tribunal telephoned the applicant using the telephone number provided. The call was answered by the aforementioned ‘different person’. Two hearing reminder SMS texts were also issued to the applicant shortly prior to the hearing (again to the number of the ‘different person’).

15. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, where an applicant does not attend a scheduled hearing, the Tribunal understands that under s.362B(1) of the Act it has a discretion, which is confirmed by s.362B(2), to reschedule the applicant's appearance before it, or to delay its decision on the review in order to enable the appearance to be rescheduled. The Tribunal must exercise its power under s.362B 'reasonably' and, that reasonableness is informed by the factual circumstances in respect of the particular review and the particular applicant. The Tribunal notes that it is under no statutory obligation to seek to contact the applicant to enquire as to the reason for the non-attendance. In considering whether it would be appropriate for it to exercise this discretion in the applicant's favour, the Tribunal has also taken into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.

16. That being said, the applicant was represented by a registered migration agent; but that agent had been unable to contact the applicant by phone or email, and the Tribunal had also been unable to contact the applicant. Having regard to all of the circumstances outlined above, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

17. The Tribunal notes that it does not need to make an applicant’s case; nor does it need to accept uncritically all evidence and submissions lodged by or on behalf of an applicant. An applicant must still provide relevant facts of the individual case, in as much detail as is necessary to enable the decision maker to establish the facts. That being said, and based on that evidence before the Tribunal, which is discussed above, I am not satisfied the applicant has satisfied the applicant has met cl.187.223(5) - (the position is still available to the applicant). Therefore, cl.187.223 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.   

    Mr S Norman
    Member

    
    

    ATTACHMENT A

    187.223(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 subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)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 Minister has approved the nomination.

    (3)    The nomination has not subsequently been withdrawn.

    (3A)   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.

    (4)    The position to which the application relates is located in regional Australia.

    (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.