Wihendra (Migration)

[2020] AATA 457

Wihendra (Migration) [2020] AATA 457 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr I Nengah Sutama Adi Wihendra
Mrs Ni Wayan Dwi Kurniawati
Miss Ni Made Kayla Wihendra
Miss Triya Kienna Wihendra
Miss Ni Putu Kenzie Wihendra

CASE NUMBER:  1708348

HOME AFFAIRS REFERENCE(S):          BCC2016/2696239

MEMBER:Susan Hoffman

DATE:21 January 2020

PLACE OF DECISION:  Perth

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

Statement made on 21 January 2020 at 10:34am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Cook – sponsorship certification form not submitted at time of application – claimed oversight by migration agent – Tribunal has no discretion in matter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cl 187.223

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 Immigration and Border Protection 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 15 August 2016. 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 Temporary Residence Transition stream, to work in the nominated position of a cook (ANZSCO code 351411).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination by his employer, Eugene Cho Pty Ltd, was not approved.

6. The application for review was lodged on 14 April 2017 and the main applicant appeared before the Tribunal on 25 October 2019 to give evidence and present arguments. His wife was present but did not give evidence. His employer Ms Cho from Eugene Cho Pty Ltd was also present and gave evidence.

7. The applicants were represented in relation to the review by their registered migration agent.

8. The Tribunal was assisted by an interpreter in the Indonesian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case concerns the nomination of the position relevant to this review.

11. The applicant was present at the hearing held on 25 October 2019 and was also present at a second hearing held for Eugene Cho Pty Ltd on 26 November 2019. At both hearings the possibility of the nomination not being approved, and the reason for that, was discussed.

12. After a decision was made by the Tribunal on 3 December 2019 to affirm the decision to refuse the nomination, a letter was sent to the applicant via his representative in accordance with s.359A, setting out that the tribunal had information which, if relied upon, could mean that the applicant did not satisfy a requirement for the grant of a visa and the Tribunal must affirm the decision under review.  The particulars of the information as set out in the letter were:

    •The nomination application made by Eugene Cho Pty Ltd has been refused.

13. The applicant was given 14 days (to 17 December 2019) to comment or respond, or request further time in which to comment or respond, and advised that if information was not received within the period allowed or as extended, that a decision night be made on the review without taking any further action to obtain the applicant’s reviews on the information.

14. The applicant responded on 17 December 2019 and the submissions made are summarised below.

    Nomination of a position

15. 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.

16. In addition, this criterion also requires that:

    ·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 located in regional Australia (as defined in r.5.19) 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.

17. The nomination was not approved by a delegate of the Minister and application was made to the Tribunal for a review of that decision which was not successful.

18. That means that there is not a successful nomination.

19. Therefore, cl.187.223 is not met.

20. The submissions made on 17 December 2019 included the following:

    ·The original visa application was lodged by a previous migration agent who made mistakes that led to the nomination by Eugene Cho Pty Ltd being refused.

    ·The applicant in this review was granted a 457 visa on 17 February 2014 which was valid until 17 February 2018.

    ·The applicant lodged his 187 visa application on 15 August 2016 which was refused on 27 March 2017.

    ·The applicant lodged an application for review by the AAT which was received by the AAT on 14 April 2017.

    ·A letter from Ms Anna Cho who is the owner of Eugene Cho Pty Ltd. She wrote that the purpose of the letter was to plead with the Tribunal to grant the 187 visa to the applicant - whom she describes as a dedicated employee – and his family.

    ·Ms Cho sets out that she has employed the applicant since 2014 and relies on him to manage a big part of the company’s day to day operations.

    ·Ms Cho claimed, which the Tribunal accepts on the basis of the material before it, that she has always maintained her obligations as a sponsor and has never taken her ability to sponsor someone for granted.

    ·Ms Cho also claimed that she has tried her best to ensure that her company is 100% complaint in  migration and other matters, and for areas outside her area of expertise, such as taxation and migration matters, she has always sought legal and professional assistance from qualified and registered professionals.

    ·Ms Cho wrote that employing the applicant was one of the best business decisions she made, and that what she heard at the hearing broke her heart.[1]

    ·Ms Cho wrote that it was at the hearing that she understood the significance of the sponsorship certification form, and of the failure to lodge that at the time of application for the nomination.[2] 

    ·Ms Cho wrote that once she was made aware of the missing form following the first hearing she signed the form.

    ·Ms Cho wrote that when the company’s nomination was refused on 9 February 2017, there was no mention of the certification form and the refusal was made in relation to training benchmarks. Ms Cho wrote that the company had met the training benchmarks but had not supplied supporting documentation or evidence at the time of application.

    ·Ms Cho made the point that had they been aware that the failure to grant the nomination was due in part to the absence of the certification form, they would not have appealed the delegate’s decision to the Tribunal but would have put in a fresh application, which there was time to do before the applicant’s 457 visa expired on 17 February 2018.

    ·Statutory declarations from the applicant and his wife.

    ·A number of photographs including of the applicant at work, of his children, and of the family at various social and sports gatherings.

    [1] This was a reference to the discussion concerning whether or not the nomination would be approved.

    [2] The failure to lodge that form at the time of application of the nomination meant that the nomination could not be approved.

21. The Tribunal accepts Ms Cho’s point, that had the delegate’s decision record set out that the nomination application could not be approved as the certification form was not provided at the time of application, then the company may well have put in a fresh application. However that did not occur, and it remains that there is not a successful nomination.

22. The representative made a written submission setting out how distressed and upset Ms Cho was when she learnt of the outcome of the review into the decision to refuse the nomination. The representative also expressed her shock at learning from the Tribunal that there was an issue with the sponsorship certification form as this was not mentioned in the delegate’s decision record or in departmental records that had been obtained under Freedom Of Information provisions.

23. The representative submitted that although the sponsorship certification form had not been submitted, the rules to which the form related had been fully complied with. The representative reiterated that had the issue with the form been brought to their attention sooner, there would have been opportunity to lodge a fresh application before the expiry of the 457 visa.

24. The representative made submissions as to the integrity and honesty of Ms Cho and the applicant, Mr Wihendra.

25. The applicant also made submissions via a statutory declaration dated 13 December 2019 concerning his dedication to his work, and that what has happened in relation to his visa was outside of his control. Submissions were also made on behalf of his wife and children, who have integrated into the Australian way of life and love living here. Submissions were made on behalf of the family by parents of children who are friends with the applicant’s children; and that go to the applicant and his wife’s involvement in the local community.

26. The representative submitted that there were compelling reasons for the visas to be granted, on the basis that the refusal was due to a situation beyond the applicants’ control and that they are strong members of the Australian and Indonesian communities in Australia, and active participants in activities related to the children’s schools.

27. The Tribunal has considered the submissions. However the Tribunal has no discretion in this matter and can only affirm the decision under review as the nomination was refused.

    CONCLUDING PARAGRAPH

28. 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.

29. With regards to the four secondary applicants, they applied for Regional Employer Nomination (Permanent) (Class RN)  visas on the basis of being members of the same family unit as an applicant who meets the primary criteria for this visa.

30. There was no evidence before the Tribunal that any of the three secondary applicants could meet the primary criteria in their own right. As the Tribunal has found that the primary applicant does not meet the primary criteria, the visa applications made by the secondary applicants cannot be granted.

    DECISION

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

    Susan Hoffman
    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.