1908053 (Migration) - [2020] AATA 3407

1908053 (Migration) [2020] AATA 3407 (30 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908053
MEMBER:Alison Mercer
DATE:30 June 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 30 June 2020 at 10:30am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Metal Fabricator – subject of an approved nomination – review application withdrawn – alleged exploitive conduct of former employer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359
Migration Regulations 1994 (Cth), Schedule 1, para 1114B; Schedule 2, cls 187.223, 187.233
CASES
Singh v MIBP [2017] FCAFC 105
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 July 2017. 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.
In the present case, the applicant is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Metal Fabricator.
The delegate refused to grant the visa because the applicant did not meet cl.187.223(3) of Schedule 2 to the Regulations, which requires him to be the subject of an approved nomination by his nominating employer ([Company 1] as trustee for [Family Trust 1], trading as [Business 1]) (‘[Business 1]’). The delegate found that the Department had refused [Business 1]’s nomination of the applicant on 14 January 2019. The delegate found that as the applicant did not meet cl.187.223(3), he did not meet cl.187.223 as a whole and could not be granted a subclass 187 visa in the TRT stream. The delegate further found that the applicant had not made any claims to meet the criteria for a visa in the Direct Entry stream.
The Tribunal received a review application from the applicant on 3 April 2019. It was accompanied by a copy of the delegate’s decision and an authority by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1908053 (Migration) [2020] AATA 3407
Case: [2020] AATA 3407
Decision Date: 30 June 2020

CaseChat Overview and Summary

This matter concerned a review application before the Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa, Temporary Residence Transition stream. The applicant was a Metal Fabricator who had been the subject of an approved nomination by their former employer, [Business 1]. However, the nomination was refused on 14 January 2019, and although [Business 1] sought review of this decision, that review application was subsequently withdrawn by the applicant's agent. The applicant alleged exploitative conduct by their former employer.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.223 of the Migration Regulations 1994, specifically concerning the requirement for an approved nomination. The Tribunal was required to determine if the applicant was the subject of an approved nomination that had not been subsequently withdrawn, and if the position nominated was still available to the applicant.

The Tribunal reasoned that clause 187.223 requires the position to which the visa application relates to be the subject of an approved nomination that has not been withdrawn. As the nomination by [Business 1] was refused and the subsequent review application was withdrawn, the Tribunal found that the applicant was not the subject of an approved nomination. This conclusion was supported by case law, including *Hasan v MIBP* and *Singh v MIBP*, which established that a later nomination, even by the same employer for the same position, could not satisfy the criteria if it was not the nomination in relation to which the applicant made their declaration in the visa application. The Tribunal noted that the position must exist at the time the nomination is submitted for approval.

The Tribunal concluded that the applicant did not satisfy clause 187.223 and therefore did not meet the requirements for the visa. Consequently, the Tribunal affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENomination of a position 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. 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 and the relevant written instrument) ·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. The delegate’s decision, a copy of which was provided by the applicant to the Tribunal, notes that [Business 1]’s nomination of the applicant was refused on 14 January 2019. While [Business 1] sought review of that decision at the Tribunal, that review application was withdrawn on 28 August 2019, as outlined by the agent at the hearing. The Tribunal therefore must find that the applicant is not the subject of an approved nomination by [Business 1] and thus cannot satisfy cl.187.223(3), and thus does not meet cl.187.223 as a whole. In reaching that conclusion, the Tribunal notes that it is a requirement for the Temporary Residence Transition stream (cl.187.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018). This was the view taken in Singh v MIBP [2017] FCAFC 105[3]. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 (which is worded almost identically to cl.187.223) refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4] [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88]. [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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