Godhu (Migration) - [2019] AATA 4707

Godhu (Migration) [2019] AATA 4707 (5 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Seshagiri Rao Godhu
Mrs Pavani Panga
CASE NUMBER:  1834683
HOME AFFAIRS REFERENCE(S):           BCC2017/1701618
MEMBER:Alison Mercer
DATE:5 July 2019
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 05 July 2019 at 11:33am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s nomination application refused – no application for review of refusal – legislative amendment – new nomination application cannot satisfy requirement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 5.19, Schedule 2, cl 187.233
CASES
Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049
Hou [2018] AATA 2858
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Nguyen [2018] AATA 2859
Patel [2018] AATA 2055
Singh v Minister for Border Protection [2017] FCAFC 105
Virk [2018] AATA 2684
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 (the Act).
The applicants applied for the visas on 12 May 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 (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 Direct Entry stream, to work in the nominated position of Café 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, which requires that the applicant was the subject of an approved nomination by an Australian employer. The delegate found that the nomination of the applicant by his Australian employer, Mediterranean Catering, was refused by the Department on 11 October 2018, and thus the applicant could not satisfy cl.187.233(3) or cl.187.233 as a whole. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 187 visa as she found that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 187 visa, and there was no evidence that she met…

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 Godhu (Migration)

Details

AGLC: Godhu (Migration) [2019] AATA 4707
Case: [2019] AATA 4707
Decision Date: 5 July 2019

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream. The applicant sought to have the decision of the Department of Immigration to refuse their visa application reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the subclass 187 visa, specifically concerning the employer's nomination. The Tribunal was required to determine if an approved nomination existed in relation to the applicant's visa application, as stipulated by clause 187.233 of the relevant legislative instrument.

The Tribunal reasoned that a fundamental requirement for the visa was an approved employer nomination that had not been withdrawn and was the subject of the applicant's declaration in their visa application. In this case, the employer's nomination by Mediterranean Catering had been refused by the Department on 11 October 2018 and this refusal was not subject to a review application. The Tribunal noted that, in accordance with existing authority such as *Singh v MIBP* [2017] FCAFC 105, a subsequent nomination, even for the same position by the same employer, could not satisfy the criteria because the visa application declaration related to a specific, past nomination event. As the applicant had not met this essential criterion, the Tribunal concluded that the decision under review should be affirmed.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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. It was conceded by the applicant at the hearing that the nomination made in connection with his subclass 187 visa application, made by Mediterranean Catering, was refused by the Department on 11 October 2018 (although he stated that he did not find this out until later, when his visa was refused). As discussed with the applicant at hearing, it is the Tribunal's view that the review application in relation to his subclass 187 visa application cannot succeed because the original nomination of them by Mediterranean Catering was refused and was not the subject of a review by the Tribunal. Thus, there is no approved nomination of the applicant as a Café or Restaurant Manager by that employer. It is a requirement for both the Temporary Residence Transition and Direct Entry streams (cl.186.223 and cl.187.233 respectively) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination 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. This was the view taken in Singh v MIBP [2017] FCAFC 105. The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event; that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

The applicants 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 applicants Regional Employer Nomination (Permanent) (Class RN) visas.Alison MercerMemberATTACHMENT 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

Full text does not contain this section.