KAUR (Migration) - [2017] AATA 1873

KAUR (Migration) [2017] AATA 1873 (13 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Manjit Kaur
Mr Jagdeep Singh
Master Gurshan Singh Pandher
CASE NUMBER:  1711871
DIBP REFERENCE(S):  BCC2016/1793988
MEMBER:Katie Malyon
DATE:13 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
Statement made on 13 October 2017 at 11:25 am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 Regional Sponsored Migration Scheme – Nomination withdrawn – Medical treatment for husband
LEGISLATION
Migration Act 1958, ss 65, 351, 417, 501J
Migration Regulations 1994, r 1.13A, r 1.13B, cl 187.233
CASES
Hasan v MIBP [2016] FCCA 104
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 20 May 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, the first named applicant is Indian national Mrs Manjit Kaur. Mrs Kaur is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook ANZSCO 351411. This stream is designed for persons who have never, or have only briefly, worked in the Australian labour market and are applying for the visa outside Australia or, as in this case, are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visas because Mrs Kaur did not meet cl.187.233(3) of Schedule 2 to the Regulations because the nomination application lodged on 20 May 2016 by A to Z Catering Solution Pty Ltd (AZ Catering) for the position of Cook which relates to Mrs Kaur was not approved because it was withdrawn on 3 April 2017. A copy of the delegate's decision was provided to the Tribunal.
The applicants appeared before the Tribunal on 12 October 2017 by way of teleconference from Griffith in regional NSW to give evidence and present arguments. Evidence was received from Mrs Kaur and her husband…

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 1873
Case: [2017] AATA 1873
Decision Date: 13 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Kaur against the Tribunal's decision to affirm the Minister's refusal to grant her and her husband Regional Employer Nomination (Permanent) (Class RN) visas. The core of the dispute revolved around the validity of the employer nomination for the visa subclass.

The legal issue before the Tribunal was whether the relevant nomination for the purposes of subclause 187.233 of Schedule 2 to the Migration Regulations 1994 had been approved and had not been subsequently withdrawn. This required the Tribunal to consider whether the nomination met the criteria that the nominated position was the subject of an application for approval, that the employer who made the nomination was the prospective employer, that the nomination had been approved and not withdrawn, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that a key requirement of subclause 187.233(4) of Schedule 2 is that the nomination must not have been subsequently withdrawn. The evidence before the Tribunal indicated that the application for approval of the nominated position of Cook made by AZ Catering had been withdrawn. The Tribunal noted the Full Federal Court's decision in *Singh v MIBP*, which held that the requirement in subclause 187.233 refers to a factual event, meaning the specific nomination in relation to which the applicant made the required declaration in their visa application. The Tribunal emphasised that it had no discretion and was bound to apply the law as it stood.

Consequently, the Tribunal affirmed the decision not to grant the visas. The Tribunal noted that Mrs Kaur could consider seeking ministerial intervention by providing a submission and evidence to the Minister for his consideration.

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 this case is whether the Minister (that is, the Department or the Tribunal) has approved the relevant nomination for the purposes of cl.187.233 of Schedule 2 to the Regulations. Nomination of a position For applicants in the Direct Entry stream, cl.187.233 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(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination for a position in regional Australia) or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). 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 and which was required to be made as part of the visa application. The provisions of cl.187.233 of Schedule 2 to the Regulations are extracted in the Attachment to this decision. In addition, this criterion also requires that:·the person who will employ the visa 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 r.1.13A and r.1.13B of the Regulations), or it is reasonable to disregard any such information; ·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 Cook in respect of Mrs Kaur made by AZ Catering was withdrawn. Hearing At the commencement of the hearing, the Tribunal explained the requirements in cl.187.233 of Schedule 2 to the Regulations and identified the issue in the review is whether the relevant nomination has been approved. The Tribunal 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 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 new nomination in respect of the same position made by the same employer could not be relied upon to meet this Schedule 2 criteria because the new nomination would not be the one in relation to which the declaration in the 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

It is the Tribunal’s opinion that, if Mrs Kaur wishes to seek ministerial intervention, it is open to her to provide a submission and evidence to the Minister for his consideration. No doubt her representative could assist in this regard. DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.Katie MalyonMemberAttachment – Extract from the Migration Regulations 1994Schedule 2 Part 187 …187.233 (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. oOOo

Ratio Decidendi

Legal Principle Established

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