Wijesooriya Patabandi Muhandiramge (Migration)

[2019] AATA 3091

Wijesooriya Patabandi Muhandiramge (Migration) [2019] AATA 3091 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jayani Udeshika Wijesooriya Patabandi Muhandiramge
Mr Asanka Chandrajith Balasooriya Arachchige
Miss Autumn Meley Balasooriya
Miss Summer Hayley Balasooriya

CASE NUMBER:  1807526

HOME AFFAIRS REFERENCE(S):          BCC2017/2043725

MEMBER:Alan McMurran

DATE:9 May 2019

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 09 May 2019 at 9:58am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) (ANZSCO 221111) – nomination not approved – alleged misconduct of migration agent – resided in Australia for 12 years – birth of children in Australia – applicant’s profession in demand in regional area – referred for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 65, 351
Migration Regulations 1994, Schedule 2, cl 187.233(3)

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 9 June 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 the Direct Entry stream, to work in the nominated position of Accountant (General) (ANZSCO 221111).

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 Minister had not approved the nomination.

6. The applicants appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The Tribunal received oral evidence from both the applicant and the second named applicant. The applicants were not represented at the hearing, which was conducted by video link from James Cook University.

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

   Background

8. The applicants are all citizens of Sri Lanka. The second and subsequent-named applicants are respectively the applicant’s husband and two children, aged 5 and 7. Both the children were born in Australia and lived their whole lives here.

9. The applicant came to Australia as a student in 2008, and according to her application, obtained an AQF Certificate in Hospitality in 2009, an AQF Certificate in Business Administration in 2010, a Diploma of Business from James Cook University at Townsville in 2012, and a Bachelor of Business (Accounting) from James Cook in 2017. The applicant started her degree in Townsville, and then moved to Melbourne in 2015 where she completed the degree (one subject) and the final exam online in 2016.

10. While a student, the applicant has worked variously as a customer service assistant in Townsville, in a fruit market in Melbourne, and part-time for a small accountancy practice, also in Queensland.

11. The applicant answered an Internet advertisement in 2017 from a recruitment agency, Cambridge Consulting, while living in Melbourne. The advertisement was for an accountant to work for an H&R Block franchise in Cairns. The applicant was successful in a job interview in Melbourne for the position, and the applicants returned to Townsville in about mid-2017, to await the outcome of the nomination and visa applications.

12. The applicant arranged for the visa application through the agency, Cambridge Consulting, who prepared and lodged the application on her behalf. The applicant completed and signed the application while still in Melbourne. The applicant was unable to provide other details as to the nomination and the visa applications, and left the carriage of those matters to “Cambridge Consulting”.

13. The applicant was not aware of the outcome of the nomination decision until she made contact with the Department in March 2018, and was informed that the nomination had been unsuccessful and that her visa application was also refused. The Department had written to the applicant in January 2018, after refusal of the nomination, but the applicant did not receive that correspondence which went to her Melbourne address, and did not reply.

14. Since March 2018, the applicant has been unable to find another sponsor or employer who might nominate her, and has been awaiting the outcome of this review. The applicant sought assistance from a lawyer who made submissions on the applicant’s behalf, including a submission that there had been “fraudulent activities” on behalf of the applicant’s agent, Cambridge Consulting.

15. The submission asserted that the applicant had been denied procedural fairness because of the actions of Cambridge Consulting, and had not been able to respond either to the nomination refusal or the visa refusal before the decision was made.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant is the subject of a nomination which the Minister has approved in compliance with the Regulations 187.233 (3).

    Nomination of a position

17. 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.

18. 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.

19. For this review, the Tribunal has had available electronic records from the Department’s file[1], the Tribunal’s case file including the submissions from the representative and the oral submissions made at hearing. It should be noted that the Tribunal does not have before it any further or additional information other than what was provided to the Department, and no further information has been supplied for this review. The applicant relies on the submissions from the agent provided on 23 April 2018, and again on 25 January 2019.

    [1] BCC2017 2043725

20. At the hearing, the Tribunal verified the applicant’s background concerning her arrival in Australia as a student, her studies and academic achievements, and work experience in part-time roles since 2008.

21. The applicant said that she had initially applied in 2017 for a 457 visa, sponsored by the Pakenham Fruit Plaza in Melbourne. The applicant said she had applied for the position of retail buyer, but as the position was subsequently removed from the list of approved occupations, the applicant said she chose to withdraw her application. The applicant said that after accepting the offer of the position with H&R Block in Queensland, the applicant was issued a bridging visa. The applicant was unable to provide any other details about her visa history.

22. The Tribunal asked questions about what the applicant had been doing since March 2018, when she became aware the visa application had been refused. She said that herself and her husband, the second named applicant, were working part-time in a Coles store at Townsville. The applicant was asked whether she had made another application for a visa, or found another nominator. The applicant said she had been unable to do so and found that despite making job applications, she was unsuccessful for reason she believes that she was not a permanent resident or Australian citizen.

23. The applicant also said that she believed she was not eligible to make any further application, once her visa had been refused. The applicant believed she had received a notice to this effect in writing, together with advice from her legal representative. The Tribunal put to her that she had not been prevented from seeking other sponsors and that it was possible for her to leave and bring another application while offshore. The applicant was not clear in her response to the Tribunal as to what she thought she was able to do, but she had not sought further advice and had simply been waiting for the review application to be determined.

24. The Tribunal explained to her that she could seek assistance from the Department and from her legal representative and that she should discuss the matter and seek advice at her earliest opportunity.

25. The Tribunal asked the applicant what she thought the Tribunal could do in the circumstances. The applicant confirmed that she had no other nomination and no other job application in place. The applicant thought that it was unfair that because the agent (Cambridge Consulting) had not advised her, she had lost an opportunity. The submission from the lawyer stated that a formal complaint had been made to Australian Federal police and to the Migration Agents Registration Authority about the agent. The applicant did not indicate whether there had been any response.

26. The second named applicant was also invited to comment. He was concerned to show the Tribunal a letter which he thought was received informing them that they could make no further applications. He said he would provide the Tribunal with a copy of that letter later the same day, 8 May 2019 (which was not provided). He then sought to discuss whether it was possible for Ministerial intervention. He said he thought they had a strong case for reason that they had been in Australia for 12 years, the children were born here, and they had been diligent, hard-working and compliant in terms of their visa commitments. The applicant asked if the Tribunal would refer the matter to the Minister accordingly.

27. The remainder of the hearing was taken up primarily with submissions from the applicants to put to the Minister under section 351. This has been dealt with below.

28. Having carefully reviewed the evidence and listened to the applicants, the Tribunal is satisfied that the primary applicant is not the subject of a nomination approved by the Minister, and accordingly cannot meet the requirement in the regulations for the direct entry stream.

29. The Tribunal finds therefore cl.187.233 is not met.

    Referral to the Minister – Is this an appropriate case for consideration?

30. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so the Minister may substitute for a decision of the Tribunal a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In doing so, the Minister is bound by all other provisions of the Act, but does not have a duty to consider whether or not to exercise the power when requested to do so, or in any other circumstances.

31. The Minister has produced guidelines on public interest powers which are discretionary and non-compellable. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.[2]

    [2] >

    The Tribunal has listened carefully to the submissions made by the applicants, who were not represented. Although the circumstances of the applicants are not “unique”, they may well fall within the category of “exceptional”, which in its ordinary meaning may be defined as “unusual” or “not typical”. The Tribunal also considers the matters summarised below are compassionate and compelling reasons why the Minister might exercise discretion.

32. The applicants have been in Australia for 12 years and have 2 children who were both born here. The children have never been to Sri Lanka and do not speak Sinhalese. Their only language is English. The older child, who is 7, attends primary school in Queensland and according to the school reports produced by the applicants, is well regarded and well-adjusted.

33. The applicant has a brother who also lives in Townsville and is an Australian citizen. The applicant says she is close to her brother and he is her only sibling. She said they spend a lot of time together and support each other in their community. If the applicant is compelled to return to Sri Lanka, she will be separated as will her children from her only sibling, who is Australian.

34. The applicants are also fearful of returning to Sri Lanka, in light of the recent violence and bombings. They say it is not safe to return, even temporarily, were they to make another application for a substantive visa while offshore. The applicant said that her parents still live in Colombo and are successful and that otherwise than for the violence, they would have no reason not to return.

35. The applicant has worked and studied diligently during her 12 years in Australia. She has obtained a university degree and other qualifications and is able to work as an accountant, which is an occupation still regarded as in short supply, particularly in regional Australia. Both the applicant and her family have established ties in their local community in Townsville which they say is close-knit and in respect of which they make a substantial contribution. The applicants have always complied with their visa obligations and do not fall within any of the categories which might exempt them from making a request to the Minister.

36. The applicants paid a total sum of $25,000 to a migration agent who whether due to negligence or inadvertence, did not communicate with them efficiently and in circumstances which may have enabled the applicant’s to take some action in relation to the nomination application before it was refused, and in order to have an opportunity to pursue a review of that application or to discuss the matter with the employer, and the applicants are still unaware of the reason why the nomination was refused. It was due to no fault of their own that the applicants were unsuccessful and that the applicant, following the visa refusal, has since lost any further opportunity under s 48 of the Act to make another visa application.

37. In the circumstances and particularly in light of the applicant’s unblemished visa history and the length of time in Australia in the regional area of Townsville, the age of the children who have never left Australia, the uncertainty of the circumstances of a return to Sri Lanka by the family, and the applicant’s propensity for employment in a profession which is sought after in the regional area, place the applicants in circumstances where their situation is “exceptional” and in respect of which consideration by the Minister would be warranted.

38. For these reasons the Tribunal finds this is an appropriate case to refer to the Minister.

    Conclusion

39. As the applicant is not the subject of an approved nomination, this application for review of the visa refusal decision must fail.

40. 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.

    Secondary applicants

41. The Tribunal is satisfied that the secondary applicants, who are members of the applicant’s family, are dependent applicants who are required to meet the subregulation 187. 311.

42. The sub-regulation requires that the secondary applicants are members of the family unit of the primary applicant who holds a subclass 187 visa granted on the basis of satisfying the primary criteria.

43. As the primary applicant does not meet the criteria, the secondary applicants are also unable to meet this criterion for the visa, and the Tribunal finds that cl. 187.311 is not met.

    DECISION

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

    Alan McMurran
    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.