Adhikari (Migration) - [2018] AATA 5379

Adhikari (Migration) [2018] AATA 5379 (7 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sundar Babu Adhikari
Mrs Sushila Devkota
CASE NUMBER:  1708817
HOME AFFAIRS REFERENCE(S):           BCC2016/827330
MEMBER:Alison Mercer
DATE:7 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 07 November 2018 at 4:30pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – nomination application refused – no response to s 359A letter – not entitled to appear before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.321
CASES
Singh v MIBP [2017] FCAFC 105
Yang v MIAC [2010] FMCA 890
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 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).
The applicants applied for the visas on 29 February 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.
In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Cook.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination. The delegate found that the applicant’s employer, RRPL Global Pty Ltd, had its nomination of the applicant refused by the Department on 4 January 2017. The delegate found that the applicant was therefore not entitled to a subclass 187 visa. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 187 visa on the basis that she did not satisfy the secondary visa criteria to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal received a review application from the applicants on 21 April 2017. It was accompanied by a copy of the delegate’s decision and…

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: Adhikari (Migration) [2018] AATA 5379
Case: [2018] AATA 5379
Decision Date: 7 November 2018

CaseChat Overview and Summary

This decision concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse their visa application. The primary issue was whether the applicant was the subject of an approved nomination for the position in question.

The Tribunal was required to determine whether the applicant met the criteria for the Direct Entry stream of the subclass 187 visa, specifically clause 187.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This includes requirements that the nominating employer is the prospective employer, the nomination has been approved and not withdrawn, and the visa application is made within six months of the nomination approval.

The Tribunal found that the applicant was not the subject of an approved nomination. While the employer, RRPL Global Pty Ltd, had lodged a nomination, it was refused by the Department. A subsequent review application lodged by the employer with the Tribunal was withdrawn by a representative of the company, meaning the Tribunal had no jurisdiction to review the Department's refusal. Consequently, the Tribunal concluded that the applicant could not satisfy the requirement of being the subject of an approved nomination, as a refused nomination, even with a withdrawn review application, could not be relied upon to meet the Schedule 2 criteria.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal also found that the second applicant, who was seeking a visa as a family member, did not meet the secondary criteria and there was no evidence she met the primary criteria in her own right.

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 187.233 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. 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. It is not disputed that in this case, RRPL Global Pty Ltd lodged a nomination of the applicant prior to 18 March 2018, on 12 February 2016, but it was refused by the Department on 4 January 2017. A review application was lodged by that employer with the Tribunal on 23 January 2017 but the Tribunal made a decision on 9 October 2018 that it had no jurisdiction to review the Department’s refusal to approve RRPL Global Pty Ltd’s nomination of the applicant because a representative of the company withdrew the review application. The Tribunal therefore finds that the applicant is not the subject of an approved nomination by RRPL Global Pty Ltd. It is a requirement for the Direct Entry stream (cl.187.233) 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).

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant the second named applicant a subclass 187 visa, as it finds that she does not meet the secondary visa criteria in cl.187.311 to be a member of the family unit of a person who holds a subclass 187 visa, and there is no evidence before the Tribunal to suggest that she meets the primary visa criteria in her own right.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Alison MercerMemberATTACHMENT A187.233(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.

Ratio Decidendi

Legal Principle Established

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