Bhangu (Migration) - [2019] AATA 3996

Bhangu (Migration) [2019] AATA 3996 (14 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Talwinder Singh Bhangu
CASE NUMBER:  1837113
HOME AFFAIRS REFERENCE(S):           BCC2017/3084159
MEMBER:Alison Mercer
DATE:14 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 14 August 2019 at 3:31pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Direct Entry stream – Cook – the nomination of the applicant was withdrawn by employer– not the subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 362
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233
CASES
Hassan v MIBP [2106] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2017] FCAFC 105
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 26 August 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 Direct Entry stream, to work in the nominated position of Cook.
The delegate refused to grant the visa because she found that 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 by an Australian employer. The delegate found that the nomination of the applicant lodged by GAB Group Pty Ltd was withdrawn by that employer on 7 November 2018. The delegate found that the applicant therefore did not satisfy cl.187.233(3) and thus did not meet cl.187.233 as a whole. The delegate further found that the applicant did not meet the threshold requirements for either of the other subclass 187 visa streams, being the Temporary Residence Transition and Labour Agreement streams.
The Tribunal received a review application from the applicant on 18 December 2018, which was accompanied by a copy of the delegate’s decision.
The applicant was invited to attend a call over hearing at the Tribunal on 17 April 2019, but did not attend that hearing.
On 24 May 2019, the Tribunal wrote to the applicant…

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.

Continue reading Bhangu (Migration)

Details

AGLC: Bhangu (Migration) [2019] AATA 3996
Case: [2019] AATA 3996
Decision Date: 14 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, by Mr. Bhangu. The decision under review was affirmed by the Tribunal, which found that the applicant had not met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position in regional Australia for the Direct Entry stream. Specifically, the Tribunal had to determine if the nomination made by the employer, GAB Group Pty Ltd, remained valid and had not been withdrawn, and if the applicant had made the required declaration in relation to that specific nomination.

The Tribunal reasoned that a critical requirement for this visa subclass is that the position to which the application relates must be the subject of an approved nomination that has not been subsequently withdrawn. It was conceded by the applicant that the nomination made by GAB Group Pty Ltd had been withdrawn on 7 November 2018. The Tribunal held that, as per the requirements of clause 187.233 and supported by the authority of *Singh v MIBP* [2017] FCAFC 105, a withdrawn nomination cannot satisfy the criteria. The Tribunal further noted that even a new nomination for the same position by the same employer would not suffice, as the visa application declaration must relate to the specific nomination that was approved and not subsequently withdrawn. Consequently, the Tribunal concluded that the applicant had failed to meet the essential criteria for 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 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 was conceded by the applicant at the hearing that the nomination made in connection with her subclass 187 visa application, made by the GAB Group Pty Ltd was withdrawn by that employer on 7 November 2018. As discussed with the applicant at hearing, it is the Tribunal's view that the review application in relation to his subclass 187 visa application cannot succeed because the original nomination of him by GAB Group Pty Ltd was withdrawn, and there is no approved nomination of the applicant as a Cook by that employer. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.187.233 respectively) 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, and on current authority, 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. This was the view taken in Singh v MIBP [2017] FCAFC 105. 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 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.

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 in relation to him.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.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(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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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