Buniel (Migration) - [2019] AATA 2470

Buniel (Migration) [2019] AATA 2470 (17 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Emmanuel Ephraim Buniel
CASE NUMBER:  1830367
HOME AFFAIRS REFERENCE(S):           BCC2017/4964272
MEMBER:R. Skaros
DATE:17 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 17 May 2019 at 9:43am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Disabilities Services Officer – nomination refused – no application for review of decision refusal lodged – not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.13, 5.19, Schedule 2, cl 187.233

CASES
Kaur v MIBP [2017] FCCA 564
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. 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).
2. The applicant applied for the visa on 27 December 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
3. 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.
4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.
5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.
6. The applicant provided a copy of the delegate’s decision record which indicated that the relevant nomination was refused by the Department on 22 August 2018.
7. On 12 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 26 February 2019, the applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 26 February 2019 granting the extension of time and informing the applicant that his response should be received by 16 March 2019.
8. A written response was received on 17 March 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: Buniel (Migration) [2019] AATA 2470
Case: [2019] AATA 2470
Decision Date: 17 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Buniel concerning the cancellation of his Regional Employer Nomination (Permanent) visa, Subclass 187, Direct Entry stream. Mr. Buniel had been employed as a Disabilities Services Officer. The core of the dispute revolved around a prior decision to refuse the nomination for this visa, a decision against which no application for review was lodged by Mr. Buniel. Consequently, the visa was not subject to an approved nomination.

The AAT was required to determine whether the delegate's decision to affirm the cancellation of Mr. Buniel's visa was correct. This involved assessing whether the delegate had properly considered the relevant legislative provisions and whether the absence of an application for review of the nomination refusal had the effect of rendering the visa invalid from its inception, thereby justifying its cancellation.

The Tribunal affirmed the delegate's decision, reasoning that the legislative framework for the Subclass 187 visa requires an approved nomination for the visa to be valid. As Mr. Buniel's nomination had been refused and no review of that refusal was sought, the visa was never supported by the necessary approved nomination. Therefore, the visa was not validly granted or maintained, and the delegate was correct in affirming its cancellation.

Orders