Gadkari (Migration) - [2023] AATA 1120

Gadkari (Migration) [2023] AATA 1120 (26 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lalit Dashrath Gadkari
REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)
CASE NUMBER:  1910929
HOME AFFAIRS REFERENCE(S):          BCC2018/938812
MEMBER:Karen McNamara
DATE:26 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 26 April 2023 at 1:09pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – written invitation under s 359A – ‘Response to Hearing Invitation’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 Mr Lalit Dashrath Gadkari (the applicant) a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General) ANZSCO 221111.
The decision record provided to the Tribunal, records that the delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required the applicant to be the subject of an approved nomination. The delegate found that the nomination lodged by Green Engineering Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 8 March 2019.
Accordingly, as the nomination application had been refused, the delegate found that cl. 187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.
The applicant lodged an application for review with…

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 Gadkari (Migration)

Details

AGLC: Gadkari (Migration) [2023] AATA 1120
Case: [2023] AATA 1120
Decision Date: 26 April 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to satisfy the criteria for this specific visa stream.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions for the nominated position, including that it must be located in regional Australia, identified in an approved nomination, and that the employer who made the nomination is the one who will employ the applicant. Crucially, it also requires that the nomination has been approved and not subsequently withdrawn, and that the visa application was made within six months of the nomination's approval.

The Tribunal considered information indicating that the nominating employer's application for review had been dismissed on 10 October 2022. Consequently, the Tribunal was invited to consider whether the nomination had, in fact, been approved by the Minister, as required by cl.187.233(3). The applicant was provided with an opportunity to respond to this information, but the Tribunal found that the applicant had not satisfied the requirements of cl.187.233.

As the Tribunal concluded that the applicant had not met the necessary criteria for the Subclass 187 visa in the Direct Entry stream, the decision under review was affirmed.

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 applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.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 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 the 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. On 30 March 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 16 May 2023 at 2:00 pm. On 5 April 2023, the Tribunal wrote to the applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The information related to information before the Tribunal that shows on 10 October 2022, the Tribunal dismissed the application for review made by the nominating employer Green Engineering Pty Ltd and for this reason the decision made by the delegate from the Department of Home Affairs is unchanged. The Tribunal’s letter of 5 April 2023 noted that this information is relevant because the Tribunal may not be satisfied that the application is subject to a nomination that has been approved by the Minister (cl.187.233(3)). The letter further stated:‘ If the Tribunal relies on this information, it may find that the nomination in relation toyou has not been approved and consequently the decision under review would beaffirmed.You are invited to give comments on or respond to the above information in writing.Your comments or response should be received by 19 April 2023. If the comments or response are in a language other than English, they must be accompanied by anEnglish translation from an accredited translator.If you cannot provide your written comments or response by 19 April 2023, you may ask us for an extension of time in which to provide the comments or response. If youmake such a request, it must be received by us by 19 April 2023, and you must state the reason why the extension of time is required.We will carefully consider any request for an extension of time and will advise whetheror not the extension has been granted.An invitation to attend a scheduled hearing was sent to you on 30 March 2023. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’

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.Karen McNamaraMemberATTACHMENT 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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