Kaur (Migration) - [2020] AATA 2526

Kaur (Migration) [2020] AATA 2526 (30 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Navjot Kaur
Mr Jagdeep Singh
Miss Gurleen Kaur
Master Jaydeep Singh
CASE NUMBER:  1725648
HOME AFFAIRS REFERENCE(S):          BCC2017/2636861
MEMBER:Keith Kendall
DATE:30 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa and substitutes a decision that the application was invalid and cannot be considered.
The Tribunal affirms the decision not to grant the Employer Nomination (Permanent) (Class EN) visas in relation to the second, third and fourth named applicants.

Statement made on 30 March 2020 at 4:12pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Graphic Pre-press Trades Worker – first applicant passed away prior to the application being made – invalid visa application – decision under review substituted – third applicant is an Australian citizen – strong compassionate circumstances – Ministerial referral – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 69, 349, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311
CASES
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
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 Immigration and Border Protection on 2 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 July 2017. 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 (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) had been seeking a visa in the Temporary Residence Stream in the position of Graphic Pre-press Trades Worker (ANZSCO 392211).
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the application was not subject to a nomination that had been approved by the Minister.
In the related nomination application of Tara Press Pty Ltd, a delegate of the Minister refused the nomination on 24 August 2017. This decision was affirmed by the Tribunal on 20 September 2019.
The delegate refused the application in respect of the secondary applicants…

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: Kaur (Migration) [2020] AATA 2526
Case: [2020] AATA 2526
Decision Date: 30 March 2020

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Temporary Residence Transition stream for a Graphic Pre-press Trades Worker. The primary dispute arose because the first applicant, who was the subject of the visa application, had passed away prior to the application being lodged. The second, third, and fourth applicants were also seeking this visa.

The Tribunal was required to determine the validity of the visa application given the death of the primary applicant before its lodgement. It also had to consider the implications of this invalidity for the applications of the other named applicants, and whether any compassionate circumstances warranted a different outcome, particularly in light of the third applicant's Australian citizenship and the Ministerial guidelines.

The Tribunal reasoned that a visa application is a personal one, and if the primary applicant is deceased at the time of lodgement, the application is rendered invalid and cannot be considered. Consequently, the Tribunal set aside the original decision not to grant the visa to the first applicant, but substituted it with a decision that the application was invalid. The Tribunal affirmed the decisions not to grant the visas to the second, third, and fourth applicants, finding that the invalidity of the primary application meant their applications could not proceed, despite the presence of strong compassionate circumstances and the third applicant's citizenship. The Tribunal noted that the matter would be referred to the Department for the Minister's consideration, acknowledging the discretionary power and policy guidelines.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s policy, the Tribunal has decided that it will refer the matter to the Department for the Minister’s consideration.DECISION The Tribunal sets aside the decision not to grant the first named applicant an Employer Nomination (Permanent) (Class EN) visa and substitutes a decision that the application was invalid and cannot be considered. The Tribunal affirms the decision not to grant the Employer Nomination (Permanent) (Class EN) visas in relation to the second, third and fourth named applicants.Keith KendallMember

Ratio Decidendi

Legal Principle Established

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