Kaur (Migration) - [2022] AATA 1220

Kaur (Migration) [2022] AATA 1220 (18 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Manpreet Kaur
Mr Mandeep Singh
Miss Samreen Kaur Mahal
REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)
CASE NUMBER:  1913101
HOME AFFAIRS REFERENCE(S):          BCC2017/1585127
MEMBER:Alison Mercer
DATE:18 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 18 March 2022 at 10:07am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – subject of an approved nomination – decision on the papers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulation 2018
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233
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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 3 May 2017. 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager.
The delegate refused to grant the visas because the applicant did not meet cl 187.233 of Schedule 2 to the Regulations, which required that the applicant was the subject of an approved nomination by her Australian employer. The delegate found that the nomination of the applicant by her employer, Falcon Financial Services Pty Ltd, had been refused by the Department, and therefore the applicant did not meet cl.187.233. She therefore did not meet the criteria for the Direct Entry stream and had not made any claims against the other streams. The delegate also refused to grant subclass 187 visas to the second and third named applicants (the applicant’s husband and daughter) on the basis that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 187 visa, and there was no evidence that they met the primary visa criteria in their…

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 1220
Case: [2022] AATA 1220
Decision Date: 18 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Kaur, who sought review of a decision to refuse her application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's employer, Falcon Financial Services Pty Ltd, had also sought review of the Department's refusal to approve its nomination of Ms Kaur for the Office Manager position. The Tribunal affirmed the Department's decision not to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the visa application relates must be the one that was the subject of an approved nomination, and that the visa application must be made within six months of the nomination's approval. The Tribunal also considered whether the applicant and her accompanying family members met the secondary criteria for the visa.

The Tribunal reasoned that a crucial requirement for the Direct Entry stream of the subclass 187 visa is that the position for which the visa is sought must be the same position that was nominated and approved. In this instance, the Department had refused to approve the employer's nomination, and the Tribunal had subsequently affirmed that refusal. The Tribunal noted that current authority and departmental policy indicate that even a new nomination for the same position by the same employer, or any nomination by a different employer, could not satisfy the criteria for the visa application, as it would not relate to the position in respect of which the original declaration was made. Furthermore, the Tribunal found that the second and third named applicants, who were family members, did not meet the secondary criteria for being members of the family unit of a visa holder, nor had they demonstrated they met the primary visa criteria in their own right.

Consequently, the Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

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 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 at the time of the delegate’s decision, the applicant was not the subject of an approved nomination, as the Department had earlier refused to approve the nomination of her made by her employer, Falcon Financial Services Pty Ltd. Subsequently, as set out in the Tribunal’s s.359A letter to the applicants, Falcon Financial Services Pty Ltd sought review of the nomination refusal decision with the Tribunal, and on 1 February 2022, the Tribunal affirmed the Department’s decision not to approve the company’s nomination of the applicant. Accordingly, there is currently no approved nomination of the applicant by Falcon Financial Services Pty Ltd and the decision to refuse the nomination is not under review by the Tribunal. As flagged in the Tribunal’s s.359A letter, it is the view of the Tribunal that a new nomination by Falcon Financial Services Pty Ltd, or any other employer, would not satisfy cl.187.233, for the following reasons. The Tribunal notes that it is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2] [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).[2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186) - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

Decision

Reasons for decision

The Tribunal must also affirm the decisions to refuse the second and third named applicants subclass 187 visas, as it finds that they do not meet the secondary visa criteria in cl.187.311 to be members of the family unit of a person who holds a subclass 187 visa, and there is no evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right. DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.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(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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