Jattana (Migration) - [2020] AATA 4547

Jattana (Migration) [2020] AATA 4547 (19 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurpinder Singh Jattana
CASE NUMBER:  1912957
HOME AFFAIRS REFERENCE(S):          BCC2017/3103727
MEMBER:C. Packer
DATE:19 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 19 October 2020 at 6:06pm
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 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 1, para 1114C; Schedule 2, cl 187.233
CASES
Hasan v MIBP [2016] FCCA 1049
Hasran v MIAC [2010] FCAFC 40
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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 August 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Retail Manager 142111.
The applicant was invited to a hearing scheduled for 27 October 2020.
Then on 2 October 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not provided in writing by 16 October 2020 the Tribunal may make a decision on the review without taking any further action to obtain his views on the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant has not provided comments or response to the particular information within the period allowed and no extension has been granted. In these circumstances, s.359C…

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.

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Details

AGLC: Jattana (Migration) [2020] AATA 4547
Case: [2020] AATA 4547
Decision Date: 19 October 2020

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Retail Manager. The applicant sought review of a decision not to grant the visa. The Tribunal, constituted by C. Packer, was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233 of the Migration Regulations 1994.

The primary legal issue was whether the applicant had satisfied the requirements of clause 187.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This includes requirements that the nominator is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information, the position remains available, and the visa application was made within six months of the nomination approval. The Tribunal considered the fact that the nominator, THANKU 13 PTY LTD, had its nomination application rejected on 4 April 2019, and no appeal was lodged against this refusal.

The Tribunal reasoned that a prerequisite for meeting clause 187.233 is an approved nomination. As the nomination in this case was refused and not appealed, there was no approved nomination upon which the visa application could be based. The Tribunal noted that current authority, citing *Hasan v MIBP* [2016] FCCA 1049 and *Singh v MIBP* [2017] FCAFC 105, indicates that a refused nomination cannot be relied upon to satisfy the Schedule 2 criteria for this visa stream. Consequently, the Tribunal found that clause 187.233(3) was not met.

The Tribunal affirmed the decision not to grant the applicant the visa, as the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the essential requirements for that stream.

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 decided to affirm the decision under review. 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. In this case, on 27 August 2017 THANKU 13 PTY LTD (the nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Retail manager, and nominated the applicant. However, on 4 April 2019 a delegate of the Minister rejected the nomination application and the nominator did not seek to appeal the refusal decision. 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 1114C(3)(d) of Schedule 1 was made. This requirement could not be satisfied by a later nomination of a position 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. [see Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. It follows that where a nomination is refused and the nominator has not appealed the refusal decision, the visa applicant will not meet cl.187.233. The Tribunal finds that there is no approved nomination and so cl.187.233(3) is not met. 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.C. PackerMemberATTACHMENT 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.

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.C. PackerMemberATTACHMENT 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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