Gohil (Migration) - [2021] AATA 4950

Gohil (Migration) [2021] AATA 4950 (1 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Saurabh Vikramsinh Gohil
Mrs Jankibahen Amitkumar Patel
Miss Shanvi Saurabh Gohil
CASE NUMBER:  1824630
HOME AFFAIRS REFERENCE(S):          BCC2016/1505786
MEMBER:Alison Mercer
DATE:1 October 2021
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 October 2021 at 4:44pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Retail Manager – subject of an approved nomination – compassionate circumstances – beyond the applicant’s control – no discretion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233
CASES
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 20 April 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 (TRT) stream, or the Direct Entry (DE) 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 Retail Manager (ANZSCO code 142111).
The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, which required her to be the subject of an approved nomination by her proposed Australian employer. The delegate noted that the nomination of the applicant made by her employer, V26 Group of Companies Pty Ltd (trading as Night Owl Convenience Toowoomba) had been refused by the Department on 6 July 2018. The delegate found that the applicant could not meet cl.187.233 as a whole and therefore did not meet the DE stream criteria, and had made no claims to meet the TRT stream criteria. The delegate therefore refused her a subclass 187 visa. The delegate also refused to grant subclass 187 visas to the second and third named applicants (the applicant’s wife and daughter) on the basis that they did not meet the secondary visa criteria in cl.187.311, which required them to be members of the family unit of a…

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 Gohil (Migration)

Details

AGLC: Gohil (Migration) [2021] AATA 4950
Case: [2021] AATA 4950
Decision Date: 1 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Gohil and his family, who sought review of a decision to refuse their applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Subclass 187 (Regional Sponsored Migration Scheme) Direct Entry stream. The core of the dispute revolved around whether the applicants met the eligibility criteria for this visa subclass, particularly concerning an approved nomination for a Retail Manager position.

The primary legal issue before the Tribunal was whether the applicants had satisfied clause 187.233 of the Migration Regulations, which requires the position to which the visa application relates to be the subject of an approved nomination by the prospective employer. This clause further stipulates several conditions, including that the nominating employer must be the one who will employ the applicant, the nomination must have been approved and not withdrawn, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicants' nominating employer, V26 Group of Companies Pty Ltd, had its nomination refused by the Department. Although the company sought review of this refusal, the Tribunal lacked jurisdiction to hear that matter because the company had been deregistered. Consequently, there was no evidence before the Tribunal that the applicant's nomination was approved. The Tribunal noted that current authority and departmental policy indicate that a later nomination, even for the same position by the same employer, cannot satisfy the Schedule 2 criteria for the Direct Entry stream. While the applicants presented compassionate circumstances, including the nomination failure being beyond their control and their long-term settlement in Australia, the Tribunal found it had no legal discretion to consider these factors when assessing the regulatory requirements.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas. The applicants were advised that they could seek Ministerial intervention under section 351 of the Migration Act if they believed their case involved sufficiently compelling or unique circumstances.

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 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. As noted above, the delegate’s decision record (a copy of which was provided to the Tribunal by the applicants), the nomination of the applicant by V26 Group of Companies Pty Ltd, was refused by the Department on 6 July 2018. As discussed with the applicants, although V26 Group of Companies Pty Ltd sought review of that refusal decision with the Tribunal, the Tribunal (differently constituted) found that it had no jurisdiction to review that decision on 20 October 2020 as the company had been deregistered on 12 June 2020. Therefore, there is no evidence before the Tribunal that the applicant is the subject of an approved nomination by that (or any other) employer. The Tribunal notes that 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 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,[1] and on current authority, even 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.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

Decision

Reasons for decision

The Tribunal notes that the applicants have raised a number of compassionate circumstances relating to their case, including the fact that the failure of the applicant’s nomination was outside his control, he is still employed as a valued employee by his nominating employer, his wife is a qualified Cook and is also employed by an employer willing to sponsor her, and that the family has been in Australia for some years and are well settled here (in particular, the third named applicant has just started primary school education). At the time of the Tribunal’s hearing, it was unclear whether the second named applicant might have another visa option, although the Tribunal accepts that it was unlikely to be an onshore one. As discussed with the applicant at hearing, the Tribunal has no legal discretion to take these factors into account when assessing whether the requirements of cl.187.233 are met, but it notes that it is open to seek Ministerial intervention pursuant to s.351 of the At in their case following receipt of the Tribunal’s decision, if they believe their case involves sufficiently compelling or unique circumstances.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

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