KAUR (Migration) - [2017] AATA 1895

KAUR (Migration) [2017] AATA 1895 (13 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kuldeep Kaur
Master Jorawar Singh
Mr Gurwinder Singh Singh
CASE NUMBER:  1702211
DIBP REFERENCE(S):  BCC2016/889239
MEMBER:Katie Malyon
DATE:13 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first named applicant and the third named applicant Regional Employer Nomination (Permanent) (Class RN) visas.

The Tribunal has no jurisdiction in relation to the second named applicant.
Statement made on 13 October 2017 at 5:18 pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Sponsorship Bar – No authorised nomination – Migration zone
LEGISLATION
Migration Act 1958, ss 65, 114C, 140O, 338, 347, 351
Migration Regulations 1994, Schedule 2, r 5.19, cl 187.223
CASES

Hasan v MIBP [2016] FCCA 1049
Kaur v MIBP [2017] FCCA 564
Singh v MIBP [2016] FCCA 2229
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 Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied to the Department of Immigration for the visas on 3 March 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 (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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.
In the present case, Mrs Kuldeep Kaur (the first named applicant), is seeking the visa in Temporary Residence Transition stream to work in the nominated position of Cafe or Restaurant Manager ANZSCO 141111. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past 2 years and that employer has offered them a permanent position in the same occupation.
The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.223 of Schedule 2 to the Regulations because the nomination application lodged by Alice Food Concepts Pty Ltd (Alice Food Concepts) on 3 March 2016 for the position of Cafe or Restaurant Manager which relates to Mrs Kaur was refused and, as a result, Mrs Kaur did not meet cl.187.223(2) of Schedule 2 to the Regulations. A copy of the delegate's decision was provided to the Tribunal.
The applicants were initially invited to attend a hearing on 11 September 2017. However,…

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) [2017] AATA 1895
Case: [2017] AATA 1895
Decision Date: 13 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Kaur against a decision of the Department of Immigration and Border Protection (the Department) to refuse her application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 Regional Sponsored Migration Scheme. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Cafe or Restaurant Manager, made by Alice Food Concepts in support of Mrs Kaur's visa application, had been approved by the Minister for the purposes of clause 187.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position has been approved and has not been subsequently withdrawn, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the Department had refused the application for approval of the nominated position on 26 November 2016. It noted the Full Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105, which held that the relevant provisions of the regulations refer to a factual event, namely whether an employer nomination had been made and declared by the applicant. The Tribunal found that, as the nomination had been refused, it could not be considered an approved nomination for the purposes of the visa criteria. The Tribunal affirmed the decision not to grant the visa to Mrs Kaur, noting it had no jurisdiction in relation to another applicant.

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 Mrs Kaur’s case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.223 of Schedule 2 to the Regulations. Nomination of a position For applicants in the Temporary Residence Transition stream, cl.187.223 of Schedule 2 to the Regulations requires that the position to which the visa application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination for a position in regional Australia). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 of the Regulations which was required to be made as part of the current Subclass 187 visa application. The provisions of cl.187.223 of Schedule 2 to the Regulations are extracted in the Attachment to this decision. In addition, this criterion also requires that:·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 of the Regulations), or it is reasonable to disregard any such information; ·the position is located in ‘regional Australia’ as defined in r.5.19(7) of the Regulations;·the position is still available to the visa applicant; and,·the visa application was made no more than 6 months after the nomination of the position was approved. As indicated in the delegate's decision, a copy of which was provided to the Tribunal, the application for approval of the nominated position of Cafe or Restaurant Manager in respect of Mrs Kaur made by Alice Food Concepts was refused by the Department on 26 November 2016. Hearing At the commencement of the hearing, the Tribunal identified that the issue in this review is whether there is an approved nomination for the purposes of cl.187.223 of Schedule 2 to the Regulations and it explained the requirements of this provision. It also observed that, in the recent Full Federal Court of Australia decision in Singh v MIBP,[1] the Court held that the words in cl.187.233 of Schedule 2 to the Regulations (which are similarly worded to the provisions in cl.187.223 of Schedule 2 to the Regulations, the provisions which are relevant to Mrs Kaur) refer to a factual event, namely, whether an employer nomination had been made and about which the applicant had made the required declaration in their visa application. As explained by Mortimer J, it is a “once off” process.[2] The Court observed that even a nomination in respect of the same position made by the same employer could not be relied upon to meet these Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration in the applicant’s visa application was made (emphasis added). The Tribunal also noted that it has no discretion and must apply the law. [1] [2017] FCAFC 105. See also Kaur v MIBP [2017] FCCA 564; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2016] FCCA 2229. [2] [2017] FCAFC 105, Mortimer J at [90].

Decision

Reasons for decision

Mrs Kaur’s representative told the Tribunal that the whole point of coming to the Tribunal was so that his client could access s.351 of the Act and make application to the Minister for his personal intervention in this matter. In the circumstances, the Tribunal is satisfied that, if Mrs Kaur chooses to approach the Minister, she is in a position to secure professional advice from her representative who could assist her with this process and document her case.DECISION The Tribunal affirms the decision not to grant the first named applicant and the third named applicant Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal has no jurisdiction in relation to the second named applicant.Katie MalyonMemberAttachment – Extract from the Migration Regulations 1994Schedule 2 Part 187 …187.223 (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 subregulation 5.19(3); and (b) in relation to which the applicant is identified as the holder of a Subclass 457 visa (Temporary Work (Skilled)) visa; and(c) 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 Minister has approved the nomination.(3) The nomination has not subsequently been withdrawn.(3A) 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.(4) The position to which the application relates is located in regional Australia.(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.oOOo

Ratio Decidendi

Legal Principle Established

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