Kaur (Migration) - [2020] AATA 5678

Kaur (Migration) [2020] AATA 5678 (26 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Arashpreet Kaur
CASE NUMBER:  1914319
HOME AFFAIRS REFERENCE(S):          BCC2017/985604
MEMBER:Sean Baker
DATE OF ORAL DECISION:  26 November 2020
DATE OF WRITTEN STATEMENT:         1 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 1 December 2020 at 11:48am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Office Manager – no approved nomination – employment with the sponsor ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 187.233; r 1.13
CASES
Hasan v MIBP [2016] FCCA 1049
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 (Cth) (the Act).
The applicant applied for the visa on 13 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 (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 Office Manager.
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations because the nomination was refused.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 to be conducted by telephone.
The applicant appeared before the Tribunal on 26 November 2020 to give evidence and present arguments.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE

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 Kaur (Migration)

Details

AGLC: Kaur (Migration) [2020] AATA 5678
Case: [2020] AATA 5678
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Kaur, who sought review of the Department of Home Affairs' decision to refuse her application for a Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa. The dispute centred on whether Ms Kaur met the criteria for the visa, specifically concerning the nomination of her employment position.

The primary legal issue before the Tribunal was whether Ms Kaur satisfied clause 187.233 of the Migration Regulations 1994, which outlines the requirements for a Subclass 187 visa in the Direct Entry stream. This clause mandates, among other things, that the nominated position must be located in regional Australia, be the subject of an approved nomination that has not been withdrawn, and that the applicant must have applied for the visa within six months of the nomination's approval. A key aspect of the dispute was whether a subsequent nomination could satisfy this requirement, or if it had to be the original nomination.

The Tribunal reasoned that clause 187.233 required the position to be the subject of an approved nomination and that this requirement could not be satisfied by a later nomination, even if made by the same employer. The Department had refused to approve the nomination by 5 RIVERS PROPERTY MAINTENANCE, and this decision was not subject to review by the Tribunal. As the applicant had not satisfied the fundamental requirement of an approved nomination for the position in relation to which the visa application was made, the Tribunal concluded that the criteria for the visa could not be met.

Consequently, the Tribunal affirmed the Department's decision not to grant Ms Kaur the Subclass 187 visa.

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 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. Prior to the hearing I sent the applicant a letter pursuant to s.359A, in which I put to her the sole issue in this case:· her visa application had been refused by the Department on 13 May 2019, because the nomination mentioned in cl.187.233 in respect of the applicant had not been approved, · the decision not to approve the nomination by 5 RIVERS PROPERTY MAINTENANCE, was made by the Department on 2 April 2019.· The nominator had not applied for review of the nomination refusal to the Tribunal. I explained that this information is relevant to the review because cl.187.233, requires that the nomination is approved by the Minister and has not subsequently been withdrawn. I noted that it is a requirement 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. I further noted that it is clear that this requirement cannot be satisfied by a later nomination of a position.[1] It was explained to the applicant that this may be the reason or a part of the reason for affirming the decision. [1] Neither a later nomination of a position made by a different employer: Hasan v MIBP [2016] FCCA 1049, nor a further nomination in respect of the same position made by the same employer: Singh v MIBP [2017] FCAFC 105 at [88]. At the hearing I explained the above information to the applicant. She said that she had applied through an agent and the agent had never clearly explained to her the problem and told her she could seek another nomination. She said she had now quit her job with the nominator but had had trouble finding work at the moment. She indicated there was no reason to delay making a decision.

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.Sean BakerMemberATTACHMENT 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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