Chhabra (Migration) - [2020] AATA 4786

Chhabra (Migration) [2020] AATA 4786 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sonam Chhabra
CASE NUMBER:  1910681
HOME AFFAIRS REFERENCE(S):          BCC2018/967203
MEMBER:C. Packer
DATE:27 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 27 October 2020 at 10:51am
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 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 February 2018. 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 (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 applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Restaurant Manager 141111.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because there was no approved nomination.
The applicant appeared before the Tribunal on 27 October 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nomination 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…

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: Chhabra (Migration) [2020] AATA 4786
Case: [2020] AATA 4786
Decision Date: 27 October 2020

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant's nominated position was that of a Restaurant Manager. The core of the dispute revolved around the validity and approval of the nomination required for this visa subclass.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Subclass 187 visa, specifically under clause 187.233 of the Migration Regulations 1994. This involved assessing whether the position to which the visa application related was the subject of an approved nomination, whether the nominator was the prospective 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.

The Tribunal reasoned that a fundamental requirement for the Direct Entry stream of the Subclass 187 visa is that the position must be the one in relation to which a declaration was made as part of the visa application, and that this declaration must be supported by an approved nomination. In this case, the initial nomination by SUPERB CHEFS PTY LTD was refused, and a subsequent attempt to appeal this refusal was found to be outside the Tribunal's jurisdiction. The applicant sought additional time to obtain a nomination from a different sponsor, but the Tribunal held that a later nomination, even for the same position by the same employer, could not satisfy the Schedule 2 criteria, citing relevant case law.

Consequently, the Tribunal concluded that the applicant had not met the essential requirements for the Subclass 187 visa in the Direct Entry stream, as the necessary approved nomination was not in place. The Tribunal affirmed the decision not to grant the 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 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 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. In this case, on 27 February 2018 SUPERB CHEFS PTY LTD (the nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Restaurant Manager 141111, and nominated the applicant. However, on 11 March 2019 a delegate of the Minister rejected the application. The nominator sought to appeal the nomination refusal decision. However, on 6 August 2019 the Tribunal (differently constituted) found that ‘The Tribunal does not have jurisdiction in this matter.’ On 2 October 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. On 14 October 2020 the applicant responded and stated:I made an application for the Regional Employer Nomination (subclass 187) visa on 28 February 2018 in the direct entry stream. I was sponsored by business SUPERB CHEFS PTY LTD for this visa. However, the nomination was refused by the department and subsequently by the tribunal as well.I do acknowledge that the Subclass 187 needs to be supported by an approved nomination under the clause 187.233 in Schedule 2 to the Migration Regulations 1994 (Cth), (the Regs). We are currently in the process of seeking a nomination from another sponsor that would support our current Subclass 187 application.We request you to allow us additional time to seek an approved nomination required for the grant of our Subclass 187 visa application. At hearing the Tribunal discussed the foregoing information. It is a requirement for the Direct Entry stream (cl.187.233) 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. This requirement could not be satisfied by a later nomination of a position made by a different employer, 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. [see Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. The Tribunal pointed out that it follows that where a nomination is refused, the visa applicant will not meet all of the requirements (cl.187.233).

Decision

Reasons for decision

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.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.C. PackerMemberATTACHMENT 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(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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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