Den Hertog (Migration) - [2017] AATA 2447

Den Hertog (Migration) [2017] AATA 2447 (6 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Paul Den Hertog
Ms Yolanda Shanti Rosaria
Mr Omar Ghani Den Hertog
Mr Harun Maulana Talha Den Hertog
Ms Mariam Hanipah Den Hertog
CASE NUMBER:  1610718
DIBP REFERENCE(S):  BCC2015/1822630
MEMBER:Danica Buljan
DATE:6 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 06 October 2017 at 2:49pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream - Nomination withdrawn by sponsor – Sponsor withdrew application due to insolvency – Subsequent employment obtained – Original nomination not in place at time of decision – Estoppel – No discretion to grant estoppel – Ministerial Intervention – Insufficient grounds to warrant Ministerial Intervention

LEGISLATION
Migration Act 1958, s 65, 351, 359A
Migration Regulations 1994, r 5.19, Schedule 2, cl 187, 223, cl 187.233, 187.311

CASES
SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Minister for Immigration and Citizenship v You [2008] FCA 241
SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451
Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990]FCA 22
Minister for Immigration and Ethnic Affairs v Polat(1995) 57 FCR 98
Haque v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FMCA 55
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [1997] 71 FCR 386

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 Immigration on 29 June 2016 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied to the Department of Immigration for the visas on 25 June 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the first-named applicant (‘the applicant’) is seeking the visa in the Direct Entry stream. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or…

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 Den Hertog (Migration)

Details

AGLC: Den Hertog (Migration) [2017] AATA 2447
Case: [2017] AATA 2447
Decision Date: 6 October 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Den Hertog, an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The central dispute concerned whether the applicant met the criteria for the visa, specifically regarding the validity of the employer's nomination at the time of the decision, after the sponsor had withdrawn their nomination due to insolvency.

The Tribunal was required to determine whether the applicant's visa application satisfied clause 187.233 of the Migration Regulations 1994. This involved assessing whether the nominated position was the subject of an approved nomination that had not been subsequently withdrawn, whether the employer who made the nomination was the prospective employer, and whether the position remained available to the applicant. The Tribunal also considered the implications of the sponsor's withdrawal of the nomination and the applicant's subsequent employment.

The Tribunal reasoned that clause 187.233 requires a factual assessment of whether an employer nomination had been made and approved, and crucially, that it had not been subsequently withdrawn. The Tribunal noted that the nomination linked to the applicant's visa application had been withdrawn by the sponsor, Choice Industrial Training Pty Ltd, on 28 April 2016. Applying the principles from *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, the Tribunal held that a withdrawn nomination could not be relied upon to satisfy the visa criteria. The Tribunal concluded that the applicant had not met the requirements of clause 187.233 because the nomination was no longer in place at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) 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 EVIDENCE The issue in the present case is whether the Minister has approved the relevant nomination for the purposes of clause 187.233 of the Regulations.Nomination of a position Specifically, for applicants in the Direct Entry stream clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under subparagraph 5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under subregulation 5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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: subclause 187.233(1). In addition, this criterion also requires that:·The person who will employ the applicant is the person who made nomination: subclause 187.233(2);·The nomination has been approved and has not been subsequently withdrawn: subclauses 187.233(3) and (4);·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 regulations 1.13A and 1.13B); or it is reasonable to disregard any such information: subclause 187.233(4A);·The position is still available to the applicant: subclause 187.233(5); and·The visa application was made no more than six months after the nomination of the position was approved: subclause 187.233(6). According to the primary decision record the applicant provided with the application for review, the nomination that was linked to the applicant’s visa application and lodged by Choice Industrial Training Pty Ltd was withdrawn on 28 April 2016.[4] The Tribunal notes that the applicant confirmed this at the Tribunal hearing. [4] As the applicant gave this information for the purpose of the application, it comes within the exception in subsection 359A(4)(b) of the Act: See SZEEUv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; Minister for Immigration and Citizenship v You [2008] FCA 241; SZIOQ v Minister for Immigration and Citizenship [2007] FMCA 1292 at [16]; Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451 Notably, in Singh v Minister for Immigration and Border Protection[5] (‘Singh’s case’) the Full Federal Court considered the wording of clause 187.233 and held that a nomination in respect of the same position made by the same employer cannot be relied on to meet the Schedule 2 criteria set out in clause 187.223. In particular, the Court held that clause 187.233 refers to a factual event, namely, whether an employer nomination had been made, and about which the applicant made the required declaration in the visa application. [5] [2017] FCAFC 105 As a result, the Court held that this meant that, even if the applicant were able to obtain a further nomination for the same position from their employer, the new nomination would not be the one in relation to which the declaration was made. The Court also held that the ‘position’ referred to in this provision is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Danica BuljanMember

Ratio Decidendi

Legal Principle Established

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