Chadha (Migration) - [2019] AATA 1140

Chadha (Migration) [2019] AATA 1140 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ashish Chadha
Mrs Monika Devi
Master Hardik Chadha
CASE NUMBER:  1820034
HOME AFFAIRS REFERENCE(S):           BCC2017/2341128
MEMBER:R. Skaros
DATE:29 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 29 March 2019 at 3:33pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant – subject of an approved nomination – nomination application refused – new nomination application lodged – can only rely on nomination made at time of visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
CASES
Kaur v MIBP [2017] FCCA 564

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 2 July 2018 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 June 2017. 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 stream, to work in the nominated position of Accountant with ADJ Financial Services Pty Ltd.
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination made by ADJ Financial Services Pty Ltd in respect of the applicant had not been approved.
The applicant provided a copy of the delegate’s decision record which indicates that the nomination was refused by the Department on 11 August 2017.
On 6 December 2018, the Tribunal wrote to the applicants noting that the nomination for the position had not been approved and requesting the applicant to provide information as to whether the relevant nomination has been approved or whether there is a pending application for review of the decision not to approve the nomination.
On 17 December 2018, the Tribunal received email correspondence from the applicant indicating that a new employer nomination had been lodged by the nominator on 15 June 2018. The applicant requested the Tribunal to…

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: Chadha (Migration) [2019] AATA 1140
Case: [2019] AATA 1140
Decision Date: 29 March 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought this visa based on an employer nomination made by ADJ Financial Services Pty Ltd. The core of the dispute revolved around the validity and approval of this nomination in relation to the visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations, specifically subclause (2) which mandates that the Minister has approved the nomination. The applicant contended that while the initial nomination was refused, a subsequent nomination had been lodged by his employer. The Tribunal was required to determine whether this subsequent nomination could satisfy the visa criterion, or if only the nomination made at the time of the visa application was relevant.

The Tribunal, presided over by R. Skaros, affirmed the decision to refuse the visa. The reasoning was based on established case law, which holds that only the nomination made at the time of the visa application can be relied upon to satisfy the requirements of clause 186.223. Despite acknowledging the applicant's difficulties arising from the alleged incompetence of a migration agent, the Tribunal found that the initial nomination lodged by ADJ Financial Services Pty Ltd had been refused and this refusal had not been set aside. Consequently, a later nomination could not be retrospectively applied to meet the criterion.

As the primary applicant did not meet the requirements for the grant of the visa, the Tribunal also affirmed the decision in respect of the secondary applicants, who had applied as members of the first applicant's family unit. The Tribunal therefore affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) 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 EVIDENCE The issue in the present case is whether the nomination of the position has been approved.Nomination 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. The applicant applied for the visa on the basis of an employer nomination made by ADJ Financial Services Pty Ltd in which he was identified as the relevant 457 visa holder. Information in the decision record, a copy of which was provided to the Tribunal, indicates that the Department refused to approve the associated nomination on 11 August 2017. At the hearing, the Tribunal discussed with the applicant the requirements in cl.186.223 and the information before it which suggests he does not meet that requirement. In response, the applicant stated that his employer had engaged an agent to lodge the nomination and visa application and that the agent failed to submit documents which had been given to him by the employer. The applicant stated that the agent also failed to inform the employer that the nomination had been refused and that by the time the employer became aware of the refusal it was too late to apply for review. The applicant stated that his employer lodged a new nomination on 15 June 2018. The Tribunal explained to the applicant that the criterion requiring approval of the nomination has been interpreted by the Courts in such a way that only the nomination made at the time of the visa application can be relied on to satisfy the requirement in cl.186.223.[1] The applicant stated that he and his family are in this situation due to the incompetence of the agent. [1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application. The Tribunal has had regard to the evidence before it and acknowledges the difficulties stated by the applicant. The Tribunal acknowledges that the nominator has lodged a fresh employer nomination in respect of the applicant, however, as discussed with the applicant at the hearing, a subsequent nomination would not assist the applicant as it could not be relied upon to satisfy the requirement in cl.186.223(2). As there is no merit in awaiting the outcome of the nomination that is currently pending before the Department, the Tribunal has decided to proceed to a decision on the information before it. The evidence before the Tribunal indicates that the relevant nomination for the position lodged by ADJ Financial Services Pty Ltd, in relation to which the applicant made the required declaration in the visa application, was refused. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that the decision to refuse the relevant nomination has been set aside. In the circumstances, the applicant does not meet the requirement in cl.186.223(2). Therefore, cl.186.223 is not met.

Decision

Reasons for decision

The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants. DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.R. SkarosMemberATTACHMENT 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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