Avinash (Migration) - [2019] AATA 4164

Avinash (Migration) [2019] AATA 4164 (11 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ankur Avinash
CASE NUMBER:  1909815
HOME AFFAIRS REFERENCE(S):           BCC2018/3598262
MEMBER:R. Skaros
DATE:11 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Statement made on 11 September 2019 at 9:20am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – subject of an approved nomination – nominator deregistered – position no longer available – current employer’s intention to sponsor the applicant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 21 September 2018. 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 the Direct Entry stream, to work in the nominated position with Gleam Accounting Pty Ltd.
The delegate refused to grant the visa because the applicant did not meet cl.187.233(5) of Schedule 2 to the Regulations because the delegate was not satisfied that the nominated position is still available to the applicant.
The applicant provided a copy of the delegate’s decision record with the application for review. The decision record indicates that the Department conducted background checks on Gleam Accounting Pty Ltd and found, from ASIC’s records, that the company had been deregistered on 23 March 2018 and that its ABN status had been cancelled from 23 April 2018.
The applicant appeared before the Tribunal on 16 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ibrahim, a Manager at the Countdown (the Woolworths Group), where the applicant is currently employed as a Data Analyst.
The applicant requested the Tribunal to delay making its decision for several weeks as his current employer is in the process of arranging a visa for him to transfer to their New Zealand office. The Tribunal agreed to delay making its decision until after 31 August 2019.…

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: Avinash (Migration) [2019] AATA 4164
Case: [2019] AATA 4164
Decision Date: 11 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have affirmed a decision that affirmed the refusal of his visa application. The core of the dispute revolved around the availability of the nominated position and the validity of the nomination itself.

The Tribunal was required to determine whether the nominated position was still available to the applicant, as mandated by clause 187.233 of the Migration Regulations. This clause requires that the position be the subject of an approved nomination, located in regional Australia, and crucially, that the position remains available to the applicant at the time of the application. The Tribunal also considered whether the applicant could rely on a new nomination from his current employer, rather than the original nomination.

The Tribunal reasoned that the original nominator, Gleam Accounting Pty Ltd, had been deregistered prior to the visa application lodgement, rendering the nomination invalid. While the Tribunal accepted the applicant's genuine belief that he was applying for a visa, it found that the nominated position was not available to him due to the deregistration of the nominator. The Tribunal clarified that it could only consider the nomination made at the time of the visa application and could not consider a subsequent nomination from the applicant's current employer, citing precedent that established the nomination must be made at the time of the visa application.

Consequently, as the applicant failed to satisfy the requirements for the Subclass 187 visa in the Direct Entry stream, the Tribunal affirmed the decision not to grant the visa.

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 EVIDENCE The issue in the present case is whether the nominated position is available to the applicant Nomination 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 relevantly requires that the position is still available to the applicant. The applicant applied for the visa on the basis of a nomination of a position made by Gleam Accounting Pty Ltd. As noted above, Gleam Accounting Pty Ltd was deregistered on 23 March 2018, which was prior to the lodgement of the visa application. The delegate in this case was concerned that the applicant may have provided false or misleading information about the position, however, after receiving an explanation from the applicant regarding his dealings with an agent who had arranged the employment on his behalf, the delegate decided not to pursue the refusal under PIC 4020. At the hearing, the Tribunal discussed with the applicant the requirement in cl.187.233 and the evidence before it which indicates that the position for which he has been nominated is not available to him. In giving evidence, the applicant stated that he had approached an agent regarding applying for an employer nomination visa and that the agent had advised him that they would find him an employer. The applicant gave evidence that he was aware that the agent was applying for an employer nomination visa on his behalf. He indicated that he was under the impression that he was being nominated as an Engineering Technologist, an occupation for which he received a positive skills assessment. He stated that he was not aware of the details that had been provided in the nomination regarding the employer, though he was aware that he was being nominated by Gleam Accounting Pty Ltd for a position. The applicant stated that after receiving correspondence from the Department he attempted to contact the agent but was unable to reach him and the agent’s office in Sydney had been closed. The Tribunal accepts that the applicant is a skilled professional and that he had genuinely believed that he was applying for a visa to fill a position with an Australian employer. However, as the evidence indicates, the position in which the applicant was nominated is not available to the applicant. The applicant provided details of his current employment as a data analyst with the Woolworths Group and asked if he could now be nominated by his current employer. The Tribunal explained to the applicant that it could only consider the position in which he was nominated at the time he made his visa application, being the position identified in the nomination made by Gleam Accounting Pty Ltd at the time the applicant lodged his visa application. The Tribunal explained to the applicant that he could not subsequently rely upon another nomination to meet the requirements in cl.187.233.[1] [1] See Kaur v Minister for Immigration and Border Protection [2017] FCCA 564 which held that the nomination relied upon to satisfy cl.187.233 must be the one which had been made at the time of the visa application and could not be a later nomination.

Decision

Reasons for decision

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.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.R. SkarosSenior MemberATTACHMENT A187.233(1) The position to which the application relates is the position:(a)nominated in an application for approval that:(i)identifies the applicant in relation to the position; and(ii)is made in relation to a visa in a Direct Entry stream; and(iii)seeks to meet the requirements of subregulation 5.19(12); 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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