Kub-Aron (Migration) - [2019] AATA 3116

Kub-Aron (Migration) [2019] AATA 3116 (2 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ethane Kub-Aron
CASE NUMBER:  1830019
HOME AFFAIRS REFERENCE(S):          BCC2017/3654481
MEMBER:R. Skaros
DATE:2 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Statement made on 02 May 2019 at 11:13am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – nomination not approved – Disabilities Services Officer – nominator not applied for review of decision to refuse nomination – applicant currently working for nominating employer – nominator lodging new application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 379A(5)
Migration Regulations 1994, Schedule 2, cl 187.233
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 (the Act).
The applicant applied for the visa on 6 October 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 (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 Direct Entry stream, to work in the nominated position of Disabilities Services Officer with Frangipani Gentle Care Group Homes Pty Ltd.
The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination of the position lodged by Frangipani Gentle Care Group Homes Pty Ltd in relation to the applicant was not approved.
The applicant provided a copy of the delegate’s decision record which indicates that the relevant nomination was refused by the Department on 22 August 2018.
On 12 February 2019 the Tribunal wrote to the applicant requesting information about whether there is an approved nomination or a pending application for review of the decision to refuse the nomination. On 26 February 2019, the applicant wrote to the Tribunal requesting an extension of time to provide a response. The Tribunal wrote to the applicant on 26 February 2019 granting the extension of time and informing the applicant that his response should be received by 16 March 2019.
On 18 March 2019 the Tribunal received a letter from the applicant requesting the Tribunal to consider the review in…

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: Kub-Aron (Migration) [2019] AATA 3116
Case: [2019] AATA 3116
Decision Date: 2 May 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought to rely on a nomination made by Frangipani Gentle Care Group Homes Pty Ltd. The delegate had refused the visa application because the associated nomination had not been approved by the Department. The applicant sought review of the visa refusal but did not seek review of the nomination refusal.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the visa, specifically whether the nomination had been approved as required by clause 187.233 of the Migration Regulations. The applicant contended that the Tribunal should consider the review in the absence of a nomination review, noting that the nominator intended to lodge a new nomination.

The Tribunal reasoned that clause 187.233(3) requires the Minister to have approved the nomination. It was established that the nomination relied upon by the applicant had been refused and that no review of this refusal had been sought. The Tribunal noted that, in accordance with established case law, only the nomination that was the subject of the visa application could satisfy this criterion. Therefore, any future nomination lodged by the employer would not be relevant to the current review. The Tribunal acknowledged that the applicant was currently working for the nominating employer but found that the legislation did not provide for consideration of the applicant's circumstances in this context.

The Tribunal affirmed the decision not to grant the visa, as the applicant had failed to meet the essential requirement of an approved nomination for the Direct Entry stream.

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 the present case is whether the relevant nomination has been approved.Nomination 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 nomination has been approved. The applicant applied for the visa on the basis of a nomination of a position made by Frangipani Gentle Care Group Homes Pty Ltd, which he identified in his visa application form as having transaction reference number EGOFYM9PO9 (the associated nomination). The delegate’s decision record indicates that on 22 August 2018 the associated nomination was refused by the Department. The applicant applied for review of the decision refusing his visa application. However, there was no record of a review of the decision refusing the associated nomination. In response to a request for further information about the status of the associated nomination, the applicant informed the Tribunal that the nominator had not applied for review of the decision to refuse the nomination and that he wished the Tribunal to consider the review in the absence of a nomination review. The applicant indicated in the written response that the nominator would be lodging a new nomination in relation to him. In relation to the provision requiring approval of the nomination, the Courts have indicated that only the nomination referred to in the visa application can be relied on to satisfy the requirement in cl.187.233.[1] Accordingly, any new nomination which may be lodged by the applicant’s employer in future would not assist the applicant in this review. In the circumstances, there would be no merit in delaying the making of the decision in this case.[1] see Kaur v MIBP [2017] FCCA 564 where it was held that the nomination relied on to satisfy cl.187.233 must be the nomination which had been made at the time of visa application. The Tribunal has had regard to the evidence before it and acknowledges that the applicant is currently working for the nominating employer. However, there is no provision in the legislation to consider the applicant’s circumstances. The issue before the Tribunal is whether the associated nomination has been approved. The Tribunal has had regard to the claim that the employer will lodge another nomination in future, however, as noted above, a new nomination would not assist the applicant in satisfying the requirement in cl.187.233(3) in this case.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.R. SkarosMemberATTACHMENT 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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