Bhullar (Migration) - [2020] AATA 4112

Bhullar (Migration) [2020] AATA 4112 (15 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Amanpreet Kaur Bhullar
Mr Ramandeep Singh
Miss Japnoor Kaur
Master Avinoor Singh Bhullar
CASE NUMBER:  1906593
HOME AFFAIRS REFERENCE(S):          BCC2016/325 BCC2016/3250590
MEMBER:Alison Mercer
DATE:15 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 15 September at 12:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook –nomination refused– employer did not seek review of the nomination refusal decision –10 year old son has acquired Australian citizenship– not the subject of an approved nomination – Ministerial intervention referral –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359,363
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311
CASES
Singh v Minister for Immigration and Border Protection [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 on 13 March 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 September 2016. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Cook.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because she did not have an approved nomination by her Australian employer. The delegate noted that the applicant’s nominating employer, Saamastan Enterprises Pty Ltd, had its nomination refused on 12 February 2019. The delegate found that the applicant therefore did not meet the criteria for a subclass 186 visa in the TRT stream, and had not made any claims or evidence that she met the criteria in either of the other streams. The delegate further found that the second, third and fourth named applicants (the applicant’s spouse and children) were not entitled to subclass 186 visas, as they did not meet the secondary visa criteria in cl.186.311 to be members of the family unit of a person who held a subclass 186 visa,…

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: Bhullar (Migration) [2020] AATA 4112
Case: [2020] AATA 4112
Decision Date: 15 September 2020

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant's employer, Saamastam Enterprises Pty Ltd, had its nomination for the applicant's position refused on 12 February 2019. The applicant did not dispute this refusal and did not provide evidence that her employer sought review of the decision or lodged a new nomination. The applicant's 10-year-old son had acquired Australian citizenship, and the applicant sought ministerial intervention. The Administrative Appeals Tribunal considered whether to affirm the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered whether the circumstances warranted a referral to the Minister for consideration under section 351 of the Migration Act 1958, given the applicant's son's Australian citizenship.

The Tribunal reasoned that a fundamental requirement for the Temporary Residence Transition stream is that the position for which the visa is sought must be the same position that was the subject of an approved nomination in relation to which the applicant made a declaration in their visa application. As the employer's nomination had been refused and no review was sought, this criterion could not be met. The Tribunal noted that current authority and departmental policy indicate that a subsequent nomination, even for the same position by the same employer, would not satisfy the requirement, as it would not be the nomination in relation to which the original declaration was made. Regarding ministerial intervention, the Tribunal found insufficient evidence to be satisfied that a referral was appropriate, although it noted that the applicant could make such a request directly to the Minister.

Consequently, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) 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 186.223 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 that was required to be 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 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 the nomination of the applicant lodged by her employer, Saamastam Enterprises Pty Ltd, was refused on 12 February 2019. There is no evidence before the Tribunal to indicate the employer sought review of that decision (or attempted to lodge a new nomination) and the applicant explained that although she attempted to persuade her employer to do so, he did not agree to do so. It is a requirement for the Temporary Residence Transition stream (cl.186.223) 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, 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] (which concerned an almost identically worded criterion for a subclass 187 visa). 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.[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

The Tribunal notes that while the applicant has raised factors that may fall within one or more of the above guidelines (in particular, the fact that her son is now apparently an Australian citizen), it has insufficient evidence to be satisfied that it would be appropriate for the Tribunal to refer this matter to the Minister for consideration pursuant to s.351. However, it remains open for the applicants to do so directly themselves, following receipt of this decision, if they believe that their circumstances fall within the Minister’s guidelines or otherwise represent unique and/or compelling circumstances.DECISION The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.Alison MercerMemberATTACHMENT A186.223(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 subregulation 5.19(3); and(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.(2) The Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) 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.(4) The position is still available to the applicant.(5) 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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