Chauhan (Migration) - [2020] AATA 5673

Chauhan (Migration) [2020] AATA 5673 (26 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Arun Chauhan
Mrs Meenu Chauhan
CASE NUMBER:  1836119
HOME AFFAIRS REFERENCE(S):          BCC2017/963857
MEMBER:Sean Baker
DATE OF ORAL DECISION:  26 November 2020
DATE OF WRITTEN STATEMENT:         1 December 2020
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 1 December 2020 at 10:48am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Sales and Marketing Manager – no approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13
CASES
Hasan v MIBP [2016] FCCA 1049
Singh v MIBP [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 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 11 March 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing 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 was refused.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicants appeared before the Tribunal on 26 November 2020 to give evidence and present arguments.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION 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.

Continue reading Chauhan (Migration)

Details

AGLC: Chauhan (Migration) [2020] AATA 5673
Case: [2020] AATA 5673
Decision Date: 26 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications of Mr and Mrs Chauhan for Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187, Direct Entry stream. The dispute centred on whether the applicants met the criteria for the visa, specifically concerning the nomination for the position of Sales and Marketing Manager.

The Tribunal was required to determine if the applicants satisfied clause 187.233 of the Migration Regulations, which outlines the requirements for the nominated position and the approval of the nomination. This included whether the nominated position was the subject of an approved nomination, whether the nominator was the intended employer, and whether the nomination had been approved and not withdrawn. The Tribunal also considered the timing of the visa application relative to the nomination approval and the presence of any adverse information concerning the nominator.

The Tribunal reasoned that the Department had refused to approve the nomination for the position, and this decision had not been reviewed by the nominator. Clause 187.233(3) mandates that the Minister must have approved the nomination. As this fundamental requirement was not met, the primary applicant could not satisfy the primary criteria for the visa. The Tribunal noted that a subsequent or different nomination could not satisfy this requirement, citing relevant case law. Consequently, as the primary applicant failed to meet the primary criteria, the secondary applicant, as a member of the family unit, could not satisfy the secondary criteria.

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

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 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. Prior to the hearing I sent the applicants a letter pursuant to s.359A, in which I put to them the sole issue in this case:· their visa applications had been refused by the Department on 23 November 2018, because the nomination mentioned in cl.187.233 in respect of the first named applicant had not been approved, · the decision not to approve the nomination by BIOLOGICAL CONTROL SYSTEMS PTY LTD ATF THE CHARLICK FAMILY TRUST, was made by the Department on 22 October 2018.· The nominator had not applied for review of the nomination refusal to the Tribunal. I explained that this information is relevant to the review because cl.187.233, requires that the nomination is approved by the Minister and has not subsequently been withdrawn. I noted that it is a requirement that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. I further noted that it is clear that this requirement cannot be satisfied by a later nomination of a position.[1] It was explained to the applicants that this may be the reason or a part of the reason for affirming the decision. It was also explained to the applicants that if the primary applicant did not satisfy the primary criteria for the grant of the visa, the secondary applicant would be unable to satisfy the secondary criteria for the grant of the visa.[1] Neither a later nomination of a position made by a different employer: Hasan v MIBP [2016] FCCA 1049, nor a further nomination in respect of the same position made by the same employer: Singh v MIBP [2017] FCAFC 105 at [88]. At the hearing I explained the above information to the applicants. They indicated they understood. The primary applicant explained that due to the financial situation of the nominator they declined to go to the Tribunal. He said he was not working for them now. the applicant asked that the decision be delayed as it was hard to leave the country now. I explained that he could discuss options and the period of his bridging visa with the Department and that I was not convinced this was a compelling reason to delay making the decision. The applicant indicated he understood.

Decision

Reasons for decision

As the primary applicant does not meet cl.187.233, he cannot satisfy the primary criteria. There is no information before me to establish that the secondary applicant can meet the primary criteria. The secondary applicant cannot meet the secondary criteria as members of the family unit of a person who has satisfied the primary criteria.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Sean BakerMemberATTACHMENT 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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