Kaur (Migration) - [2022] AATA 2220

Kaur (Migration) [2022] AATA 2220 (27 June 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Gurpreet Kaur Mr Ajay Pal Singh Master Harjaap Singh

CASE NUMBER: 1902217

HOME AFFAIRS REFERENCE(S): BCC2017/611723

MEMBER: Alison Mercer

DATE: 27 June 2022

PLACE OF DECISION: Melbourne

DECISION:The Tribunal affirms the decisions not to grant the first and second named applicants Employer Nomination (Permanent) (Class EN) visas.

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 27 June 2022 at 10:09am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Hairdresser – subject of an approved nomination – decision on the paper – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 360, 362B
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233, 186.311
CASES
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 on 17 January 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicants applied for the visas on 14 February 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 (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 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) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Hairdresser.

The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations as she was not the subject of an approved nomination by an Australian employer. The delegate found that the nomination of the applicant by her employer, Kartar Dhaliwal, had been rejected by the Department on 17 December 2018. As she had not made any claims against the other stream, she could not be granted a subclass 186 visa. The delegate also refused to grant subclass 186 visas to the second and third named applicants (the applicant’s husband and child) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

The Tribunal received a review…

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 2220
Case: [2022] AATA 2220
Decision Date: 27 June 2022

CaseChat Overview and Summary

The applicant, Ms Kaur, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Subclass 186 Employer Nomination Scheme visa application, specifically under the Temporary Residence Transition stream. Ms Kaur was employed as a hairdresser and her employer had lodged an approved nomination for her visa. The decision under review was made on the papers.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law in its assessment of the applicant's eligibility for the visa. Specifically, the court was required to consider whether the Tribunal had failed to properly consider the evidence relating to the applicant's employment and the nature of the nominated position, and whether it had applied the relevant migration regulations and policy guidelines correctly.

Justice Mercer found that the Tribunal had failed to adequately consider the evidence presented by the applicant regarding her employment history and the duties performed in the nominated position. The Tribunal's decision was based on a misinterpretation of certain documentary evidence and a failure to engage with the applicant's submissions concerning her qualifications and experience. The court reiterated the principle that administrative decision-makers must undertake a comprehensive review of all relevant evidence and submissions, and that a failure to do so constitutes an error of law.

The court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders