Bhullar (Migration) - [2022] AATA 4684

Bhullar (Migration) [2022] AATA 4684 (17 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaswinder Singh Bhullar
REPRESENTATIVE:  Mr Andreas Athanasiou (MARN: 1685134)
CASE NUMBER:  1918544
HOME AFFAIRS REFERENCE(S):          BCC2017/3119728
MEMBER:Susan Reece Jones
DATE:17 December 2022
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 17 December 2022 at 2:43pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant Manager – no approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 187.233; rr 1.13, 5.19
CASES
Hasran v MIAC (2010) 183 FCR 413
M v MIMA (2006) 155 FCR 333
MIMA v Sun (2005) 146 FCR 498
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 (Cth) (the Act).
The applicant applied for the visa on 29 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 (Cth) (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 of Cafe or Restaurant Manager (ANZSCO 141111).
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nominator’s nomination did not satisfy reg 5.19(4)(h) of the Regulations because the nominator did not demonstrate that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area (namely Geelong, Victoria).
On 17 June 2022, the Tribunal wrote via email to the nominator’s representative Mr Andreas Athanasiou of the K& A Associates, pursuant to s.359(2) of the Act to invite the nominator to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met).
The nominator was requested to provide the requested information by 1 July 2022 and was advised that if it failed to do so (or failed to ask for an…

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 Bhullar (Migration)

Details

AGLC: Bhullar (Migration) [2022] AATA 4684
Case: [2022] AATA 4684
Decision Date: 17 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought this visa for a position as a Cafe or Restaurant Manager. The core of the dispute centred on whether the nomination for this position had been approved as required by regulation 187.233 of the Migration Regulations 1994.

The Tribunal was required to determine if the nomination met the criteria set out in regulation 187.233. Specifically, this involved assessing whether the nominated position was the subject of an approved nomination application in the Direct Entry stream, located in regional Australia, and whether the applicant was identified in relation to that position. Further, the Tribunal had to consider whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within six months of the nomination's approval.

The Tribunal affirmed the delegate's decision to refuse the nomination. It noted that the nominator, The Trustee for the Burger Unit Trust, had its nomination application refused by the Department on 21 May 2019. The Tribunal had invited the nominator's representative to provide updated information demonstrating compliance with all applicable criteria, setting a deadline of 1 July 2022. The representative requested an extension to 19 July 2022, but failed to provide the requested information or a further extension request by the due date. Consequently, the nominator lost its entitlement to a hearing and the Tribunal proceeded to make a decision based on the available information. As the requirements for the Direct Entry stream of the Subclass 187 visa had not been met, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination. vi CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the relevant nomination has been approved as required by cl.187.233. The issue in the 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 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 reg 1.13A and reg 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.Nominator proceedings As noted above, the delegate’s decision (a copy of which was provided with the applicant’s review application) identified that the application of the nomination by The Trustee for the Burger Unit Trust was refused by the Department on 21 May 2019. On 17 June 2022, the Tribunal wrote via email to the nominator’s representative Mr Andreas Athanasiou of the K& A Associates, pursuant to s.359(2) of the Act to invite the nominator to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met). The nominator was requested to provide the requested information by 1 July 2022 and was advised that if it failed to do so (or failed to ask for an extension of time to do so), by that date, the nominator would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information. On 5 July 2022 the representative emailed the Tribunal and stated that it was unable to contact the nominator and requested an extension of time to 19 July 2022. As the Tribunal did not receive a response or a request for an extension of time by the due date, the nominator lost its right to a hearing. If a person is given a formal invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information.[4] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[5] [4] ss 359C(1), 424C(1). [5] ss 360(3), 425(3).

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.Susan Reece JonesMemberATTACHMENT 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

Full text does not contain this section.