Brar (Migration) - [2021] AATA 1316

Brar (Migration) [2021] AATA 1316 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Rajwinder Singh Brar
Mrs Manpreet Kaur
CASE NUMBER:  1816499
HOME AFFAIRS REFERENCE(S):          BCC2016/3627922
MEMBER:Sheridan Lee
DATE:17 March 2021
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 17 March 2021 at 3:07 pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
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 applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 November 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 (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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Restaurant Manager.
The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination application made by the applicant’s prospective employer, Curry Brothers Pty Ltd, was refused.
On 16 February 2021, the applicants were invited to attend a hearing via telephone to give evidence and present arguments in relation to their case, scheduled for 17 March 2021.
On 23 February 2021, the Tribunal invited the applicants to comment on or respond to information pursuant to s.359A of the Act. The particulars of the information were:
The application for approval of the nominated position made by Curry Brothers was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position was not approved.
The letter outlined that the information was relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of…

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: Brar (Migration) [2021] AATA 1316
Case: [2021] AATA 1316
Decision Date: 17 March 2021

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, by the applicant, who was nominated for the position of Restaurant Manager. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the Subclass 187 visa, specifically clause 187.233, which requires the nominated position to be the subject of an approved nomination in regional Australia. The Tribunal also considered the secondary criteria for a second applicant, who was a family member.

The Tribunal reasoned that the nomination application had been refused by a delegate of the Minister, and this refusal was affirmed by the Tribunal on 7 October 2020. Consequently, the Tribunal found that the position was not the subject of an approved nomination as required by clause 187.233. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had not met the primary criteria, the Tribunal concluded that the second applicant also did not satisfy the secondary criteria.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

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 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. As outlined above, the nomination application related to the visa application was refused by a delegate of the Minister. On 7 October 2020, the Tribunal affirmed the decision to refuse the nomination. Consequently, the Tribunal finds that the position is not the subject of a nomination approved by the Minister as required by cl.186.233. 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. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, on the basis that she is not a member of a family unit of a person who holds a Subclass 187 visa.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Sheridan LeeMemberATTACHMENT 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.

Decision

Reasons for decision

As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, on the basis that she is not a member of a family unit of a person who holds a Subclass 187 visa.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Sheridan LeeMemberATTACHMENT 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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