Kaur (Migration) - [2022] AATA 4816

Kaur (Migration) [2022] AATA 4816 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Sandeep Kaur
REPRESENTATIVE:  Mr Sobaran Singh (MARN: 9791702)
CASE NUMBER:  1916667
HOME AFFAIRS REFERENCE(S):          BCC2018/555062
MEMBER:Alison Mercer
DATE:9 November 2022
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 9 November 2022 at 5:11pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 –– Direct Entry stream – Cook– applicants was no longer working for her original nominating employer –nomination remains refused – tribunal affirmed nomination application – not the subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233
CASES
Hasan v Minister for Border Protection [2016] FCCA 1049
Kaur v Minister for Immigration and Border Protection [2017] FCCA 564
Singh v Minister for Immigration and Border Protection [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 1 February 2018. 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 Cook.
The delegate refused to grant the visa because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Gendhola Syam Preethi, was rejected by the Department on 16 May 2019. The delegate found that the applicant therefore did not meet the criteria for a subclass 187 visa in the Short Term stream and had not made claims to meet any other stream.
The Tribunal received a review application from the applicant on 25 June 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Sobaran Singh, as her representative and authorised recipient for correspondence.
On 7 September 2022,…

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) [2022] AATA 4816
Case: [2022] AATA 4816
Decision Date: 9 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, by Ms Kaur. The applicant's employer, Ghendola Syam Preethi, had nominated her for the visa. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position for which she sought the visa. This involved considering the requirements of clause 187.233, which mandates that the position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. The Tribunal also had to consider whether a subsequent nomination, if one existed, could satisfy the criterion, given that the original nomination had been refused and that refusal affirmed.

The Tribunal reasoned that the applicant could not satisfy clause 187.233 because her employer's nomination had been refused by the Department and this refusal was affirmed by the Tribunal on 17 June 2022, meaning the refusal decision stood. Consequently, the applicant was not the subject of an approved nomination. The Tribunal relied on the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that the criterion refers to a specific factual event – the nomination in relation to which the visa applicant made a declaration. Therefore, even a new nomination for the same position would not satisfy the criterion, as it would not be the nomination in relation to which the declaration was made. The Tribunal concluded that the applicant had not met the requirements for the Direct Entry stream of the subclass 187 visa.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, as the applicant had failed to satisfy the relevant visa criteria.

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 LAW, 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 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. It is not disputed that although the applicant was nominated by her Australian employer, Ghendola Syam Preethi, for a subclass 187 visa, the nomination by her employer was refused by the Department on 16 May 2019, and that refusal decision was affirmed by the Tribunal (differently constituted) on 17 June 2022. This means that it is no longer under review by the Tribunal and the Department refusal decision still stands. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination by Ghendola Syam Preethi and thus cannot satisfy cl.187.233(3). She therefore cannot meet cl.187.233 as a whole. There is no evidence that the applicant is the subject of an approved nomination by another employer, and even if she were, the Tribunal’s view is that this would not satisfy cl.187.233. This was the view taken in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer, this new nomination would not be the one in relation to which the declaration was made. Further, the 'position' referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.

Decision

Reasons for decision

Therefore, the Tribunal must find that cl.187.233 is not met, and that the applicant cannot be granted a subclass 187 visa in the DE stream. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the DE 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 DE stream have not been met, the decision under review in relation to the applicant must be affirmed.decision The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.Alison MercerMemberATTACHMENT 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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