Karki (Migration) - [2024] AATA 1112

Karki (Migration) [2024] AATA 1112 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Aashish Karki
Ms Namrata Pokharel Karki
Mr Ansh Karki
REPRESENTATIVE:  Mrs Nilli Singh Bhandari (MARN: 2318142)
CASE NUMBER:  2314514
HOME AFFAIRS REFERENCE(S):          BCC2023/3222951
MEMBER:Amanda Mendes Da Costa
DATE:7 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 7 May 2024 at 9.30am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Accountant (General) – no approved nomination – allegations against migration agent – no contact with employers – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13
CASES
SZGJO v MIACT [2005] FMCA 1349
SZMME v MIAC [2009] FMCA 323
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 on 29 August 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 June 2023. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement 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 Accountant (General) ANZSCO 221111.
The delegate refused to grant the visas because the applicant did not meet cl 186.233 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 2 May 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 conducted by video. The Tribunal was satisfied that the applicants and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that…

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 Karki (Migration)

Details

AGLC: Karki (Migration) [2024] AATA 1112
Case: [2024] AATA 1112
Decision Date: 7 May 2024

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The applicant sought review of a decision by a delegate of the Minister to refuse the visa. The core of the dispute revolved around whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination of the position.

The Tribunal was required to determine whether the applicant satisfied the criteria for an approved nomination in the Direct Entry stream, as stipulated by clause 186.233. This included assessing whether the nominated position was properly identified, whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, and if there was any adverse information concerning the nominator or associated persons. The Tribunal also had to consider whether the position remained available and if the visa application was lodged within the prescribed timeframe after the nomination approval. Furthermore, the Tribunal considered the applicant's claims of being a victim of fraud by their migration agent and whether these circumstances warranted Ministerial intervention.

The Tribunal affirmed the delegate's decision, finding that the nomination application lodged by Spartan Steel Pty Ltd in respect of the applicant had been refused on 14 June 2023. As an approved nomination is a mandatory requirement for the grant of a Subclass 186 visa, the Tribunal concluded that the applicant did not meet this essential criterion. While acknowledging the potential financial difficulties the applicants might face if required to leave Australia, the Tribunal determined that the circumstances did not justify Ministerial intervention, and therefore, the matter was not referred. The Tribunal noted that the applicants retained the option to make a direct request to the Minister.

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 186.233 of Schedule 2 to the Regulations.Nomination of a position Clause 186.233 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. 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. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicants that it would seek submissions from them toward the end of the Tribunal hearing on any matter they considered relevant to the review. The Tribunal noted that in their decision the delegate found that on 14 June 2023 the nomination application lodged by Spartan Steel Pty Ltd in respect of the applicant was refused by a delegate of the Minister. The Tribunal discussed this information with the applicants during the hearing. The Tribunal advised them that the information is relevant to the applicants’ review application because it is a requirement for the grant of the visa that the applicant is the subject of an approved nomination in the Direct Entry stream. The Tribunal further advised that it relied on this information in making its decision it may find that the applicant does not meet one of the requirements for the grant of a subclass 186 visa and therefore the second named and third named applicants do not meet the secondary requirements for the grant of the visa and this would mean that the Tribunal must affirm the decision under review. The applicant’s oral evidence was consistent with the account given in his statutory declaration. He told the Tribunal that he had been a victim of fraud by his migration agent Ms Nilli Singh Bhandari (MARN 2318141) and Mr Abhinaya Bhandari of My Ambition Consulting Pty Ltd. He explained that he came to Australia in 2015 on a Student visa. After completing his Bachelor Of Accounting degree, he has been working as an Assistant in Nursing in aged care facilities. Whilst working in aged care the applicant answered an advertisement by My Ambition Consulting Pty Ltd, which offered representation in migration matters and promised applicants a success in their applications for visas granting them permanent residency.

Decision

Reasons for decision

The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). It accepts that if the visas are not granted and the applicants are required to leave Australia, it will cause them financial difficulties in relocating it does not consider that the applicant’s actions in relation to the visa application warrants Ministerial intervention. Accordingly, the Tribunal has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. Amanda Mendes Da CostaMemberATTACHMENT A186.233(1) The position to which the application relates is the position:(a)nominated in an application for approval that:(i)identifies the applicant in relation to the position; and(ii)is made in relation to a visa in a Direct Entry stream; and(iii)seeks to meet the requirements of subregulation 5.19(10); and(b)in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

Ratio Decidendi

Legal Principle Established

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