Dhindsa (Migration) - [2020] AATA 5666

Dhindsa (Migration) [2020] AATA 5666 (26 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mandeep Singh Dhindsa
Mrs Hardeep Kaur Sandhu
Mr Inayat Dhindsa
CASE NUMBER:  1815194
HOME AFFAIRS REFERENCE(S):          BCC2016/2970579
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 9:35am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant 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 7 September 2016. 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 Cafe or Restaurant 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 by Walker, Jayson, 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 also received oral evidence from Jaspreet Kaur Dhindsa and Varinder Kaur.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence…

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 Dhindsa (Migration)

Details

AGLC: Dhindsa (Migration) [2020] AATA 5666
Case: [2020] AATA 5666
Decision Date

CaseChat Overview and Summary

This decision concerns an appeal by the applicants against the refusal of their Regional Employer Nomination (Permanent) (Class RN) visas. The primary applicant sought to satisfy the criteria under clause 187.233 of the Migration Regulations 1994, which requires, among other things, that the nominated position be located in regional Australia, that the nomination be approved and not subsequently withdrawn, and that the position remain available to the applicant. The Department had refused the visa applications because the nomination in respect of the primary applicant had not been approved.

The Tribunal was required to determine whether the primary applicant met the criteria under clause 187.233, specifically whether the nomination had been approved and had not been withdrawn, and whether the position to which the visa application related was the one in respect of which the declaration was made. The Tribunal also considered the implications for the secondary applicants if the primary applicant failed to meet the primary criteria.

The Tribunal reasoned that the nomination made by Walker, Jayson, was not approved by the Department and that the subsequent review application for this nomination was withdrawn by the applicant. Clause 187.233(4) explicitly requires that the nomination has not been subsequently withdrawn. The Tribunal noted that this requirement could not be satisfied by a later nomination of a position, citing *Hasan v MIBP* and *Singh v MIBP*. As the primary applicant did not satisfy this essential criterion, he could not meet the primary criteria for the visa. Consequently, the secondary applicants, who relied on the primary applicant satisfying the primary criteria, also failed to meet their criteria.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) 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 Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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 3 May 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 Walker, Jayson, was made by the Department on 14 March 2018.· Walker, Jayson applied for review of this decision at this Tribunal on 3 April 2018, and the Tribunal finalised the matter on the basis of a withdrawal of that application on 18 August 2020. 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 applicants 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]. The applicants responded to the s.359A invitation, explaining that the primary applicant had moved from his work with the nominator to assist his sister to run her restaurant and function centre in Bendigo. He is managing the business. He notes that he understands why his visa was refused but has been working in a regional area for the last seven years. He provided a statutory declaration from his sister and the restaurant registration certificate.

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 applicants can meet the primary criteria. The secondary applicants cannot meet the secondary criteria as members of the family unit of a person who has satisfied the primary critera.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(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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